Through instant application, applicants/accused Nawab Ali, Pir Bux, Noor Hassan, Iqbal Hussain, Gul Hussain all sons of Muhammad Paryal, Wadero Abdul Ghafoor son of Abdullah, Imdad Ali, Qurban Ali and Muhammad Hassan @ Imran all sons of Wadero Abdul Ghafoor , all by caste Larik, seek their release on post arrest bail in FIR No. 186/2019 registered at P.S Daharki for offences under Section 324, 337-A(ii), 337-F(ii), 311, 355, 147, 148, 149, PPC.
2. Applicants approached the trial Court with the same plea which was declined by learned 3rd Additional Sessions Judge Mirpur Mathelo, vide order dated 4.10.2019.
3. Precisely , the facts of the prosecution case as narrated in the FIR are that on 21.08.2019, complainant along with Amanullah left his house on motorbike for purchasing wood. At 0830 hours, when they reached at Nao Kot bus stand near saw machine, where they found 12 culprits on five bikes who arrived there, to whom they identified as Wadero Abdul Ghafoor with hatchet, Imdad Ali, Qurban Muhammad Hassan @ Imran and Imtiaz armed with cudgels, Gul Hassan armed with hatchet, Nawab Ali having plastic bottle in his hand, Peer Bux, Noor Hassan, Iqbal armed with cudgels and two unknown culprits. Wadero Abdul Ghafoor and Gul Hassan Larik accosted the complainant party that they did not held Jirga of Karap, therefore they will not be spared and would be murdered.
By saying so, accused Wadero Abdul Ghafoor caused hatchet blow on head of complainant. Accused Imdad Ali and Imtiaz caused lathi blows on right shoulder and back side of the complainant. Accused Gul Hassan caused hatchet blows on head and arms of P.W Amanullah. Accused Peer Bux, Muhammad Hassan @ Imran and Noor Hassan caused lathi blows to P.W Amanullah. Thereafter , accused Nawab Ali and Iqbal poured black oil from the plastic bottle on their hands and rubbed the same on the face of complainant. Complainant party raised cries, which attracted PWs Barkat Ali and Abdul Waheed. Thereafter the accused fled away on their bikes towards Mirpur Mathelo. Thereafter complainant appeared at P .S and lodged the FIR.
4. Mr. Muhammad Aslam Shahani, learned counsel for the applicants argued that as per memo. of injuries, injured Sher Muhammad received 02 injuries, out of them one was caused by sharp cutting substance and another was caused by hard and blunt substance; that per medical certificate both the injuries caused to injured Sher Muhammad were caused with sharp cutting weapon; that complainant stated in the FIR that he received 03 injuries; that PW Amanullah received 03 injuries caused by applicants/accused Gul Hassan, Pir Bux, Muhammad Hassan @ Imran and Noor Hassan; that MLO has noticed only two injuries on the person of injured Amanullah caused by sharp cutting weapon; that there is enmity between the parties over matrimonial affairs; that Mst. Hajul @ Sultana had filed suit for dissolution of marriage against applicant Gul Hassan which has been decreed by the Family Court; that Mst. Hajul and her brother Ali Gul filed criminal miscellaneous application before Ex-Of ficio Justice of peace for registration of FIR and denied the allegation of karap leveled against Mst. Hajul and said application has been dismissed; that no such incident took place and the offence with which applicants are charged is punishable up to 05 years and does not fall within prohibitory clause of Section 497, Cr.P.C.; that ingredients of Section 324, PPC as well as 311, PPC do not attract in the present case; that all the family members i.e father , sons and brothers have been involved in the case; that no Jirga has been held by the applicants/accused. He, in support of his contentions, referred the case law reported as 2007 YLR 2819 , 2018 MLD 614, 2007 P.Cr.LJ 299, 2009 MLD 21 , 2013 MLD 831 and 2009 YLR 184 .
5. Mr. Syed Sardar Ali Shah Rizvi DPG for the state argued that applicants are named in the FIR with specific role; that allegation of karap has been leveled and statement of Mst. Sultana has been recorded by the I.0; that I.0 secured bottle containing black oil and blood stained mud; that I.0 secured blood stained hatchet and lathi from applicant/accused Abdul Ghafoor , Muha mmad Hassan and Gul Hassan; that chemical examiner's report is in positive; that applicant Muhammad Hassan was arrested on 22.8.2019 while recovery was effected from him on 28.08.2019 as well as from accused Imdad. He opposed pail plea of applicants/accused Abdul Ghafoor and Gul Hassan, however conceded for rest of the applicants/accused.
6. Mr. Anwar All Lohar learned counsel for the complainant argued in the same line as argued by the learned DPG for the State and referred case law reported as 2003 MLD 1848 , 2012 SCMR 556, 2002 SCMR 442 and 2008 SCMR 807 .
7. Admittedly , the applicants are named in the FIR with specific role. The version of the complainant has been supported by PWs. The ocular account is also supported by the medical evidence. Enmity exists between the parties per FIR, which is double edged sword and cuts both ways. Also, the allege d plastic bottle containing black oil has also been recovered during investigation and the prosecution has presented several newspaper articles in evidence as well that show reports regarding the occurrence. I would firstly like to discuss the case of applicants/accused Abdul Ghafoor and Gul Hassan as it is more serious than the case of the rest of the applicants/accused as they caused injuries to the complainant and PW Amanullah on their head, which is a vital part of the body , though said injuries have been declared as Shajjah-i-Mudiha punishable under Section 337-A(ii), PPC and carries five years punishment . The Chemical Examiner report is also in positive. Not only this, the applicants cannot merely be allowed bail on the ground that none of the offences alleged against them fall within the prohibitory clause. Although, it is true that in cases falling outside prohibitory clause, bail is not refused by the Courts, but accused cannot claim bail on the said ground as a matter of right, rathe r the bail can be refused even in such like category of cases. In this respect, reliance is placed on the case of Muhammad Siddique v. Imtiaz Begum and 2 others (2002 SCMR 442). The application of Section 324 and 311, PPC will be determined after recording of the evidence of the parties. Now adverting to the case of applicants Imdad Ali, Pir Bux, Nawab Ali, Muhammad Hassan @ Imran, Noor Hassan, Iqbal Hussain and Qurban Ali, they have not caused injuries to the complainant and PW on their vital parts of the bodies and the said injuries are declared as Ghayr Jaifah Badiha, punishable under Section 337-F(ii), PPC carrying three years and does not fall within prohibitory clause of Section 497, Cr.P.C.. They are in judicial custody . Case has already been challaned and applicants are no more required for further investigation. Their case falls within the ambit of Section 497(2), Cr .P.C. for further inquiry .
8. For the foregoing reasons, I am of the opinion that applicants/accused Abdul Ghafoor and Gul Hassan have failed to make out a case for grant of bail, therefore their bail application is dismissed. However , applicants/accused Imdad Ali, Peer Bux, Nawab Ali, Muhammad Hassan, Noor Hassan, Iqbal Hussain and Qurban Ali are admitted to post arrest bail and they be released forthwith on furnishing solvent surety in the sum of Rs. 50,000/-each with PR bond in the like amount to the satisfaction of trial Court . However , learned trial Court is directed to proceed with the case expeditiously and decide the same within three months fully in accordance with law under intimation to this Court.
9. Above Cr . Bail Application stands disposed of in the above terms.