1. BHAJANDAS TEJWANI J.---This is bail application on behalf of applicants' Fida Hussain and Shahid Hussain who are facing trial under sections 302, 147, 148, 427, 504, 337-A(i)/F(i), 114 PPC before the court of learned IInd Additional Sessions Judge, Sukkur, arising out of Crime No,58/2010 Police Station, Abad.
2. The facts in brief as stated in the F.I.R are that on account of race between the two boys there was annoyance between the parties. On 1-5-2010 the complainant was available at his cabin along with Allah Wadhayo and his sons namely Asadullah and Sanaullah. At about 6-50 p.m. accused Munawar alias Dillo having thick donkey stick, Ghulam Nabi alias Papoo having cot stick, Gul Hassan, Irfan, Anwar, Mehboob and present applicants Fida Hussain and Shahid Hussain, all Kori Memon by caste came at the scene of incident. Anwar Kori instigated all accused persons to grapple the complainant party. The accused Munawar, Ghulam Nabi, Gul Hassan and Irfan are alleged to have caused lathi blows to deceased Allah Wadhayo while present applicants are alleged to have caused lathi blows to Sanaullah and Asadullah. The N.C. was lodged immediately by 1915 hours showing the time of incident as 6-50 p.m.
3. It is contended by the learned counsel for the applicants that there is delay of three days in lodging of the F.I.R. At earliest stage the complainant lodged the NC in which he did not disclose the names of any of the accused but thereafter on death of deceased Allah Wadhayo the F.I.R was lodged with full consultation wherein the present applicants were implicated alleging that they have caused lathi blows to P.Ws. Sanaullah and Asadullah. According to learned counsel both the P.Ws. have sustained simple injuries caused by hard and blunt substance. He further submits that prior to the NC of the complainant, the present applicant No,2 lodged the NC with same Police Station stating therein that the complainant party attacked on them in front of their house in which five persons on the applicants/accused side including one lady are injured. Learned counsel in last submits that the case of the applicants with regard to intention to cause murder of deceased Allah Wadhayo or of P.Ws. is lacking in the instant case and that the present applicants are alleged to have caused simple injuries to the P.Ws.
4. The learned counsel has relied on the cases of Ghulam Shabir v. State (2003 M LD 1715) and Nooruddin v. State (2005 M LD 1267).
5. Messrs Shyam Lal, learned Assistant Prosecutor General appearing for the State and Qurban Ali.
6. Malano appearing for the complainant have contended that the names of the present applicants have been mentioned in the F.I.R with specific role of causing injuries to prosecution witnesses, which is supported by injured prosecution witnesses; therefore, the applicants are vicariously liable having shared common intention. They further contended while opposing the bail plea that counter version cannot be considered at this stage as the incident has taken place in the house of complainant and their F.I.R is not registered.
7. In the case of Ghulam Shabir (supra) the accused who caused simple injuries to prosecution witnesses and no injury was caused by him to deceased, the concession of bail was allowed. In the case of Nooruddin (supra) NC was lodged prior to lodging of F.I.R and no details were given in the NC and thereafter F.I.R was lodged with further improvements and the bail was allowed on said consideration.
8. The role assigned to the applicants IA is of causing simple injuries to the P.Ws. Sanaullah and Asadullah and no injury is attributed against the applicants to have caused to deceased Allah Wadhayo. The incident appears to be of sudden flare up during which both sides have caused injuries to each other and counter version of the Incident is available on the police record.
9. Unfortunately in this incident one person lost the life. The NC lodged by the complainant was after the NC lodged by the applicant Shahid Hussain. In his NC the complainant did not array the names of any of the persons involved in the matter and all it was after three days when the names of about eight persons were disclosed in the F.I.R., as the complainant has a sufficient time of three days to lodge the F.I.R. with full consultation. Therefore, since no active role has been assigned to the applicants in causing death of deceased, coupled with delay in the lodging of the F.I.R. and counter version raised by the applicants side is sufficient to constitute that case of present applicants requires further enquiry.
10. Accordingly, this bail plea is accepted and the applicants shall be released on furnishing surety in the sum of Rs,200,000 (two lacs) each and P.R. bond in the like amount to the satisfaction of the trial Court.