1. ' MAQBOOL AHMED AWAN, J.--Through this bail application, applicants seek bail in crime No,35 of 2007, registered at Police Station, Bulri Shah Karim for offences under sections 302, 324, 147, 148, 149 and 504, P.P.C.
2. ' Brief facts of the prosecution case as per F.I.R. Lodged by complainant Babar Ameer are that his deceased brother Abbas Hyder aged about 55 years has 9 acres of land in deh Jati and there was a dispute over the land between sons of late Muhammad Sadiq and deceased Abbas Hyder. On the day of incident, complainant along with his deceased brother Abbas Hyder, Adnan, Aadil Hussain and hari Ali Muhammad were present on the lands of deceased for the purpose of looking after it, when at about 4.50 p.m. Accused Asad Malak, Rehman Malak, Mubarak Dars armed with pistols, while Samiullah Malak armed with Rifle and applicants/accused Jumma Dars and Achu having hatchets came there and started abusing the complainant party and asked as to why the complainant party came at the lands and should get out, otherwise, they will kill them, upon which deceased Abbas Hyder restrained from abusing and told them the lands belong to him, whereupon accused Asad Malik, Samullah, Mubarak and Rehman made straight fires upon Abbas Hyder within the sight of the complainant party, who fell down on the lands, the complainant party tried to rescue Abbas Hyder, then accused Jummo Dars and Achu inflicted hatchets blows on the head of Ali Muhammad. The complainant party saw firearm injuries on the chest, left and right arms of Abbas Hyder and he died on the spot. Thereafter all the accused while raising slogans went away. The complainant party left Adnan over the dead body and referred injured Ali Muhammad to hospital for medical treatment through P. W . A adil Hussain and then the complainant appeared at Police Station and lodged the F.I.R. As stated above.
3. ' The applicants filed bail applications before the learned trial Court and the same was dismissed by learned IInd: Additional Sessions Judge, Hyderabad Sindh on 1-2-2008, Now the applicants repeated the same before this Court.
4. ' The learned advocate for applicants mainly argued that these two applicants were armed with hatchets. Both the applicants alleged to have caused hatchet injury on the head of injured Ali Muhammad. He then submits that it is yet to be seen at the time of trial that which of the two accused/applicants caused injury falling under section 337-A(iii), P.P.C., Which prescribed punishment of ten years and that the case of applicants, therefore, require further inquiry as envisaged under sub-clause (2) of section 497, Cr.P.C. In support of his contention, learned counsel has relied upon the case of Shafi Muhammad v. State reported in 2002 PCr.LJ 494.
5. ' The learned counsel Mr. S. Madad Ali Shah appearing on behalf of the ocmplainant while opposing the grant of bail, contended that without recording the evidence at this stage, it cannot be said that which of the applicant caused injury of section 337-A(iii), P.P.C. He has further contended that at the time of hearing of the bail application, only tentative material is to be seen and the deeper appreciation has always been deprecated. In support of his contention, learned counsel for complainant has relied upon the following case laws:-
(1) Haji Muhammad Nazir v. State (2008 SCM R 807).
(2) Gulu Khan v. Gul Daraz Khan (1995 SCM R 1765).
(3) Ghulam Nabi v. State (1996 SCM R 1023).
(4) Shahzaman v. State (PLD 1994 SC 65)
(5) Munir Ahmed Dogar v. State (PLD 2004 SC 822).
(6) Abdul Latif v. State (2006 M LD 639).
6. ' In the light of case law relied upon by the learned counsel for the complainant, who submits that the injury on head is vital part of the body of injured Ali Muhammad and the seat of injuries suggests the intention on the part of applicants to commit murder of injured Ali Muhammad and section 324, P.P.C. Is fully attracted.
7. ' On the other hand, Mr. Muhammad Azeem Panhwar, learned State counsel has opposed the grant of bail and urged that from the applicants the blood stained hatchets were recovered and that the chemical report has certified the hatchets having human blood. He has also submits that the applicants are not entitled for bail.
8. ' I have given anxious consideration, to the argument advanced by the learned counsel for the parties and with their kind assistance, perused the entire material available on record and also case law.
9. From the perusal of record, appears that both the applicants duly arm(with hatchets have caused the injury wit their respective weapons on the head injured Ali Muhammad. The point raise by the learned advocate for applicants without force as at this stage it cannot I ascertained that which of the application caused injury on the head of injured Muhammad, which prescribed punishment of ten years. Admittedly, blood stained hatchets have also been recovered from the applicants and positive report of chemic examiner shows that the said weapons we] used in the commission of the offence.
10. ' In view of the above, I am of the considered view that this is not stage where the point raised by learned advocate for applicants is resolved without recording the evidence of material witnesses including Medical Officer therefore, I, in the interest of justice, direct the learned trial Court to examine at least eye-witness and Medical Officer and thereafter the applicants are at liberty to file fresh bail application before the learned trial Court, if so advised. The law relied upon by the learned counsel for the applicants is not applicable to the facts and circumstances of the present case, while case laws relied upon by the learned counsel for the complainant are fully applicable to the facts and circumstances of the present case in hand. Resultantly, this bail application is dismissed.