1. ' It is submitted that the three applicants are being tried for offence under section 380, P. P. C. Read with section 9 of Offences against Property (Enforcement of Hudood) Ordinance, 1979, and it is alleged by the prosecution that these three applicants committed theft of a pair of bullocks from the cattle shed in the house of complainant on the night of 12th January, 1981. As per F. I. R.
2. Complainant Lal Bux has stated that he and his son Muhammad Matal were sleeping inside the house with other inmates while his other son Muhammad Ratal was sleeping in the cattle shed near the cattle. At about 3-00 a.m. Complainant and Matal woke up on the cries of Ratal of "thief- thief." Other co-villagers also reached there and they all saw three thieves going away with the pair of bullocks allegedly stolen. They were followed and while the complainant party attempted to retrieve the stolen bullocks, there was resistance and the thieves gave hatchet blows to P. Ws.
3. Matal and Ratal. In private defence the complainant party also gave injuries to the thieves and ultimately succeeded in apprehending them at a distance of four furlongs from the house of the complainant. After the apprehension the thieves gave their names and they were brought to the Police Station alongwith hatchets by the complainant where F. I. R. Was recorded. Prosecution proposes to examine three eye-witnesses including complainant and his two sons. Two other witnesses are proposed to be examined as corroborating witnesses who joined the complainant party in pursuit of thieves. Medical evidence shows that Muhammad Matal and Muhammad Ratal have received simple injuries. Challan was presented on 26th January, 1981 and the learned counsel for applicants states that the 'applicants have remained in custody for 5 months.
4. ' Bail plea is urged on the ground firstly, that the offence does not fall under section 9 of the Hudood Ordinance for the reason that as per requirement of section 7, there is no proof available, to Hadd for which the requirement is that there should be two Muslims, adult, male witnesses other than the victim of theft, who fulfil requirement of Tazkia-Al-Shuhood. It is stated that in the instance case the actual removal of bullocks from the cattle shed is not claimed to have been seen. According to F. I.
5. R. Complainant and his other son Muhammad Matal woke up on cries of Ratal and by that time the thieves were already outside the house, as such it is not the case of the prosecution that all the three alleged eye-witnesses saw the actual act of removal of bullocks from tethers in the cattle shed amounting to 'Hire. It is further pointed out that Muhammad Ratal does not claim in his 161, Cr.
6. P. C. Statement in unquivocal terms that he saw the thieves entering the cattle shed and removing the bullocks from the cattle shed by untying them from pegs. It is further pointed out that there is not even a clear assertion in the F. I. R. That bullocks were tethered or they were free to move. In support of this proposition the counsel relies upon PLD 1981 F SC 108 and 1980 P Cr. L J 1044.
7. The next point urged is that there is a counter-version of the incident and according to the applicants there was enmity between them and the complainant party who are Sials. It is stated that when the applicants were apprehended even as prosecution case injuries were found on their persons. This fact is mentioned in the mashirnama of arrest of applicants in this case and they were referred to doctor for medical examination. It is further submitted that police did not record counter-case of the applicants and after some time applicant Sheral filed private complaint in the Court of Civil Judge and F. C. M., Khairpur against the complainant and the eye-witnesses. It is further submitted that applicant Sheral has sustained in all 6 injuries and one of them on the head has been declared by the doctor to be grievous in nature. Applicant Goher has sustained two injuries. These injuries have been declared by the doctor to be simple in nature. It is pointed out that these injuries as compared to the injuries alleged to have been caused to the eye-witnesses in this case are more in number and heavier in gravity. On this premise it is urged that there is a counter-version emanating from the same incident and a case on that basis is also pending, as such the case of the applicants falls under section 497 (2), Cr. P. C. For further inquiry as it is the function of the trial Court to determine which of the two versions arising from the same incident is correct and which party is aggressor. For this proposition reliance is placed upon 1972 SCMR 628 and 1977 P Cr. L J 530, ' In the circumstances stated above the learned A. A,-G. Also conceded to this legal position.
8. Applicants are, therefore, admitted to bail in the sum of Rs, 30,000 (thirty thousand) with one surety and P. R. Each in the like amount to the satisfaction of trial Court. .