1. This bail application has been filed on behalf of Meenhon and Gullo in a case under section 302/34/114, P. P. C. Pending against them, in the Court of Sessions Judge, Larkana.
2. Prosecution case is that since 8/9 years Amir Jan Magsi is in possession of Survey No, 276 Deh Khudi Taluka Mirokhan, District Larkana and applicant Meenhon son of Ghulam Rasool had taken the same survey number on lease from Revenue Officer about 8/9 months back. Amir Jan has filed appeal against that order before Commissioner, Sukkur which is pending.
3. On the day of incident i,e, 27th January, 1984 Amir Jan, alongwith his two nephews Sikandar, Ghulam Kadir and sister's son Muhammad Hassan was working in that survey number when at breakfast time accused Ellah Bux, Meenhon, Gullo with hatchets and Ranwat with lathi came there.
4. Ranwat abused and told Amir Jan and others that they had taken this land on lease from Government on which Ghulam Kadir replied that they should not abuse them, thereafter Ranwat instigated others when Ellah Bux, Meenhon and Gullo gave hatchet injuries to Ghulam Kadir who fell down and accused went away. Ghulam Kadir was brought to hospital for treatment and then Amir Jan went and lodged the report at Police Station Mirokhan on the same day at 1-00 p.m. The F. I. R.
5. Was registered under section 307/34/114, P. P. C. Ghulam Kadir died after 5 days on 2nd February, 1984 therefore applicants were challaned under section 302/34/114, P. P. C. Ranwat has been admitted to bail by the learned Sessions Judge, Larkana as only part assigned to him is that of instigation.
6. Mr. Abdul Mujeeb Pirzada, learned counsel for the applicants contended that disputed survey number belongs to applicant Meenhon therefore he has every right to defend his property and complainant was encroacher. He has also submitted that fight is sudden one and there was no intention whatsoever on the part of the applicants to commit murder of Ghulam Kadir. Mr. Abdul Mujeeb Pirzada, has cited 1983 P Cr. L J 1395 and submitted that the facts of this case are identical to the above-reported case where bail was granted.
7. Mr. Abdul Ghafoor Mangi, Assistant Advocate-General has opposed the bail application and stated that specifically it is mentioned that Meenhon, Gullo an Ellah Bux caused hatchet injuries to Ghulam Kadir and according to Medical certificate three injuries were found on the body of deceased. He has also argued that blood-stained hatchets were produced by both the applicants and the report of Chemical Examiner is awaited.
8. The motive for this incident is dispute over Survey No, 276, which was said to be in possession of complainant but it is in the F. I. R. That disputed piece of land is granted on lease to applicant Meenhon by Revenue Office 8/9 months before the incident. The claim of complainant over this survey number is that he was in possession without having any documentary proof. He is stated to have filed appeal after the land was granted to applicants Meehon but no such proof has been produced during investigation and prima facie applicant Meenhon is owner.
9. Prosecution case is that applicants went to Survey No, 276, where incident took place and Ghulam Kadir sustained injuries. Ghulam Kadir was neither the grantee of the land nor claims to be in possession as such there was no motive or reason for the applicants to kill him. In these circumstances the possibility of fight being sudden cannot be overruled. He died after five days of the incident. It is stated in F. I. R. That accused caused injuries, to Ghulam Kadir. If it could be presumed that each accused caused one injury. There is no allegation that they attempted to cause other injuries.
10. For the purpose of bail at this stage when it is admitted position that Survey No, 276 was granted to applicant Meenhon he can get benefit of section 97, P. P. C. Which reads as under :- Section 97. Right of private defence of the body and of property :- Every person has a right, subject to the restriction contained in section 90, to defend :- First : His own body, and the body of any other person, against any offence affecting the human body ; Secondly : The property whether movable or immovable, of himself or of any other person, against any act which is an offence falling under the definition of the theft, robbery, mischief or criminal trespass, or which is an attempt to commit theft, robbery, mischief or criminal trespass."
11. In case of Ahmed and others v. The State , the occurrence took place when accused party tried to prevent complainant party from ploughing disputed piece of land and occurrence was held to be a sudden affair the bail was granted. In another case reported in 1983 P Cr. L J 1395 bail was granted to accused having a decree of Civil Court in his favour and there were two versions about the possession. In case of Amir v. The State , Honourable Judges of the Supreme Court have observed that for the purpose of bail law is not to be stretched in favour of prosecution but benefit of doubt if any must go to accused and benefit of doubt for the purpose of bail was also extended in case of Muhammad Aslam and 5 others v. The State , when incident took place in the field of the accused.
12. In these circumstances I am inclined to exercise discretion in favour of the accused. Consequently the applicants be admitted to bail on furnishing two sureties in the sum of Rs, 50,000 (fifty thousand) each and P. R. Bond in the like amount to the satisfaction of Sessions Judge, Larkana.
13. The observations in this order are of tentative nature and trial Court to decide case independently, on evidence and merits and should not be taken/ into consideration the observations made in the order. 1 2 3