' KHALID ALI Z. QAZI, J.--- Through this application, applicant/accused Gul Muhammad Bangwar, seeks bail in F.I.R. No,57 of 2008, registered at Police Station Buxapur on 3-7-2008, under sections 321, 148, 149, P.P.C. After being declined his bail plea by the learned Additional Sessions Judge, Kashmore vide order, dated 6-5-2009.
2. The facts of prosecution case in brief are that since long there is a dispute between complainant party and accused Umed Ali alias Bedo over landed property, in which Ali Murad was murdered, but due to intervention of the Nekmards the dispute was settled in between the parties. On 2-7- 2008, complainant Bashir Ahmed along with his brother Daim Ali and cousin Khan Muhammad left their village for Buxapur, when at 12-00 noon, they reached near Andhi Wagon Stop, they listen Hakal and saw accused Gul Muhammad (2) Muhammad Khan, (3) Umed Ali alias Bedo, (4) Bashir Ahmed along with one unidentified accused, all duly armed with T.T. Pistols. Thereafter, accused Umed Ali alias Bedo challenged complainant party saying that his father Ali Murad was murdered over the matter of land dispute, therefore, today he will take revenge of that murder. Daim Ali, who was empty handed, tried to slip away, whereupon accused Gul Muhammad (applicant) fired pistol shot upon him, which he sustained on his abdomen. The co-accused also made fires upon injured Daim Ali, which also hit him. The complainant party being empty handed raised cries and injured Daim Ali fell down by raising cries. Then all the accused persons fled away towards southern side in a jungle. The complainant then saw that Daim Ali had received fire injury at right side of abdomen through and through and one through and through injury at right buttock, blood was oozing.
Thereafter, complainant arranged for conveyance and took the injured to Raheem Yar Khan for better treatment. After leaving the injured at hospital the complainant rushed to police station, where he lodged the above said F.I.R.
3. The applicant was arrested on 7-7-2008 and after completion of investigation, police has submitted the challan on 22-7-2008 showing accused Umed Ali and Shabir Ahmed as absconders and present applicant Gul Muhammad and Muhammad Khan in custody. Later on Muhammad Khan was granted bail by the learned Sessions Judge on 23-9-2008.
4. I have heard Mr. Ghulam Mandi Sangi, Advocate for the applicant and Mr. Nisar Ahmed G. Abro, learned State Counsel.
5. Learned Advocate for the applicant has contended that the incident is alleged to have taken place at Wagon Stop (blind halt) Buxapur, where independent persons were available, but no efforts were taken by Investigating Officer to join independent witnesses excepting cousin of complainant, hence mandatory provision of section 103, Cr.P.C. Have been violated. He further added the applicant has been declared as Hepatitis "B" carrier by Medical Board of Chandka Medical College Hospital, Larkana, after examination and such opinion has been expressed in the letter, which is available in the F.I.R. Therefore, being a sick person accused/applicant is entitled for his treatment from a doctor of his own choice, as there is no medical facilities available in Central Prison, Sukkur and in case applicant is not properly cured or get treatment of his own choice, he may lost his life. He further added that it is alleged that applicant along with other culprits fired at injured P.W. Daim Ali Bangwar, but Medical Officer, Taluka Hospital, Kashmore has opined two injuries only; injuries Nos.1 and 2 as Jurh Jaifa and injury No,3 Jurh Ghayr Jaifa Mutalahimah, both the injuries carry less than 10 years punishment as there is no Itlaf-e-Salahiyyat-i-Udw. He further added that applicant was arrested on 7-7-2008 and has remained in jail for about a year and there is no progress in trial in respect of directions of this Court and charge has not been framed.
For delay in trial accused is not at fault, which is evident from case diaries, hence present application is mainly pressed on the ground of hardship. He further added that co-accused Muhammad Khan has been granted bail on merits so on the rule of consistency present applicant is also entitled for concession of bail.
6. Conversely, Mr. Nisar Ahmed G. Abro, learned State Counsel, does not oppose the prayer for grant of bail on the plea of rule of consistency.
7. I have considered the arguments advanced by learned counsel for the parties.
8. Earlier, bail application of the applicant was dismissed by the learned Sessions Judge, Kashmore at Kandhkot vide order, dated 23-9-2008, so also by this Court vide order 17-11-2008 passed in Criminal Bail Application No,640 of 2008. However, the learned trial Court was directed to record the evidence of material witnesses of the prosecution witnesses within three months, but no progress has been made in spite of directions of this Court. The applicant again moved bail application before the learned trial Court on the ground of illness of applicant and non- examination of material witnesses within a period of three months, but the trial Court also rejected the same vide order, dated 28-2-2009. The applicant then moved bail application before the learned Additional Sessions Judge, Kashmore, which has also been dismissed on 6-5-2009. On perusal of the material available on the record it appears that the medical report is available on the record, wherein the members of Special Medical Board are of unanimous opinion that applicant is case of Hepatitis "B" carrier. Furthermore, it is alleged that the applicant in the first instance fired upon Daim Ali, which hit him on the right side of the abdomen and it was through and through causing wounds of exit on the left side of abdomen, but it appears that he had no intention to kill the victim as he has not repeated the fire again and only one fire shot is attributed to the applicant. The applicant is a case of Hepatitis "B" carrier and languishing in jail since 7-7- 2008 which can also be hazard for other inmates of the prison.
9. In the case of Muhammad Umar v. The State PLD 2004 SC 477 in the almost identical situation a Division Bench of apex Court consisting of my lords Iftikhar Muhammad Chaudhry and Sardar Muhammad Raza Khan, JJ. Held that according to medical certificate accused had allegedly fired upon the outer side of the right leg's middle part of the injured witness and, prima facie, he appeared to have no intention to fire upon any vital part of the said witness for the purpose of launching murderous assault and the bail was granted: In my humble view, the law laid down by the Honourable Supreme Court in Muhammad Umar's case (supra) thus, stands attracted in the present case as well as the applicant did not repeat the fire, which shown no intention of launching murderous assault upon the victim.
10. For what has been discussed hereinabove, I am inclined to grant bail to the applicant, as no useful purpose can be served by keeping the accused in custody in the peculiar circumstances of the case. Consequently, I admit applicant/accused Gul Muhammad Bangwar on bail subject to furnishing solvent surety in the sum of Rs,1,00,000 and P.R. Bond of like amount to the satisfaction of learned trial Court. The bail application stands disposed of along with listed application in the above terms.