Sahib Dino son of Mehrab Khaskheli, the accused applicant, stands charge-sheeted by S.H.O. P.S. Dilbar Mehar for offence under sections 337(i) and 337-D Qiasas and Diyat Ordinance. The accused/applicant moved the Court of Judicial Magistrate and F.C.M. Mirpur Khas with a prayer for bail which was rejected by the learned Magistrate vide his order dated 11-10-1994. Thereafter, the accused/applicant approached the learned Sessions Judge Mirpur Khas with a prayer for bail which-was also rejected by the learned Sessions Judge vide his order dated 24-10-1994. The accused/applicant has approached this Court for bail.
2. The brief facts of the prosecution case in F.I.R. Lodged by complainant Mian Bux alias 'Papoo Khaskheli are that he resides in Deh 134 alongwith his wife, widow mother-in-law Mst. Darya Khatoon and Mst. Singhar and that 80 acres of agricultural land of his decreased father-in-law namely Bagh Faqir is situated in Dell 134. The same land is managed and cultivated by his cousin Ghulam A.I son of Dilawar with the help of heirs, whereas complainant manage the land of his widow mother-in-law. On 23-6-1994 at about 8. p.m. Complainant was sitting in the house of his maternal uncle Dital when he heard commotion from outside the house. The complainant alongwith his maternal uncle Dital came out of the house and reached the place of incident and saw on the light of torch that Sahib Dino son of Mehrab Khaskheli was present duly armed with hatchet and that Sahib Dino within the sight of complainant and P.W. Dital caused hatchet injuries on the mouth of injured A.I Ghulam who after receipt of injuries fell down on the ground. The complainant and others raised cries which attracted A.I Muhammad, and other villagers who arrived there. Accused on seeing the villagers made their escape good. It is further alleged in the F.I.R. That Ganwar son of Mehrab and his father Mehrab son of Sahib Dino were armed with hatchet and Lathis and were present outside the house of Wasno Khaskheli who enquired from Sahib Dino whether he has killed A.I Ghulam on which Sahib Dino replied that he could not find Mian Bux and found his cousin A.I Ghulam whom he had inflicted hatchet injuries. After that the accused persons ran away. The complainant lodged the F.I.R. And police after usual investigation submitted the charge-sheet.
3. I have heard Mr. Faiz Muhammad Qureshi learned counsel for the applicant/accused, who has contended (1) that case of the prosecution is full of doubts and that version of the prosecution is not accepted by the police inasmuch as names of co-accused Ganwar, Mehrab and Wasno are placed in Column No.2 of the challan. (2) That incident is that of 23-6-1994 whereas the report is lodged on 25-6-1994 at 1915 hours. (3) That accused/applicant was arrested on 26-6-1994. (4)
That blood-stained hatchet was secured from the accused on 29-6-1994. (5) That injured has himself gone to the hospital and was discharged on 11-7-1994. (6) That the statement of the injured was recorded on 9-8-1994. (7) That provisional medical certificate shows 2 injuries and final medical certificate shows injuries caused by sharp cutting weapon are grievous. (8) That Mashirnama of injuries in all shows 3 injuries. (9) That medical certificate is manipulated. (10) That reasons are not assigned in the medical certificate. (11) That there is conflict between ocular evidence and the medical evidence.
4. Learned counsel for the applicant has cited and relied upon the following case-laws:--
(1) Muhammad Riaz Munna v. The State (1993 SCM R 1321).
(2) The State v. Aziz alias Abdul Aziz (PLD 1985 Kar.27 relevant page 30).
(3) Iqbal Muhammad Saeed and others v. The State and 2 others (1992 PCr.LJ 2086).
(4) Amjad and another v. The State (1982 SCM R 955).
(5) Ghulam Rasool and another v. The State (1986 PCr.LI 120).
(6) Karam Elahi v. The State (PLD 1992 Peshawer 111).
(7) Ch. Muhammad Anwar Samma v. The State (1976 SCMR 168).
(1) In the case of Muhammad Riaz Munna (1993 SCM R 1321) F.I.R. Was lodged after a delay of nearly 20 days, alleged eye-witnesses were not named in the F.I.R. Police statements were recorded after 21 days from the date of incident. Whereas in the present case name of the accused/applicant is mentioned in the F.I.R. With a specific role of causing hatchet injuries on the face of injured A.I Ghulam. The names of the witnesses are also shown in the F.I.R. Admittedly the injured has received injuries on his face and his teeth were broken and he was under treatment at L.M.C. Jamshoro, therefore, his examination by the police was delayed. This authority in my humble view is not applicable.
(2) In the case of State v. Aziz (PLD 1985 Karachi 27 relevant page 30) their Lordships have held that in cases of hurt the medical certificate produced by the Medical Officer does not disclose the basis of the opinion as to nature of the injury and when there is material inconsistency between ocular evidence and the medical certificate as to the nature of injuries, or as to the weapon used, or as to the time of the incident and the inconsistency is such that it renders the prosecution story prima facie incredible. In my humble view this authority is not applicable so far as the present accused/applicant's case is concerned. 'The Medical Officer after proper examination has issued the medical certificate. The allegation that accused caused hatchet blow on the face of the injured A.I Ghulam is supported by the medical evidence. There is no any inconsistency so far the weapon used in this crime is concerned. As such this authority is not applicable to the case of the applicant/accused.
(3) In the case of Iqbal Muhammad Saeed (1992 PCr.LJ 2086) it is held that grant of bail in a case not falling within the prohibitory clause of section 497, Cr.P.C. Is a rule while is refusal should be an exception. This authority is of our own High Court but the principle laid down, is not applicable so far the case of the present applicant is concerned because punishment provided for an offence under section 337-D is up to 10 years R.I., therefore, offence will fall under the prohibitory clause of section 497, Cr.P.C.
(4) In the case of Amjad and another (1982 SCM R 95.5) it is held that version given in F.I.R. Found to be false with regard to majority of accused already allowed bail. Co-accused only attributed one injury on the leg of deceased, held entitled grant of bail in circumstances of case. This authority of Honourable Supreme Court in my humble view is not applicable to the facts and circumstances of the present case. According to F.I.R. Accused/applicant is alleged to have caused sharp side hatchet blows on the face of the injured which is supported by the medical evidence. So far the allegation against the present accused/applicant is concerned, it is neither denied in the F.I.R. Nor it is in conflict with the ocular evidence. The role assigned to the other co-accused was only to the effect that they were standing with the present applicant/accused and actually according to the prosecution case itself co-accused had not caused any injury to the injured, therefore, this authority is not applicable to the present case.
(5) In the case of Ghulam Rasool and another (1986 P.Cr.LJ 120) it is held that inconsistency existing between ocular evidence and medical evidence, case falling within the purview of section 497, Cr.P.C. This authority is also not applicable so far the case of the present applicant/accused is concerned. As pointed out earlier admittedly there is no any inconsistency between the ocular evidence arid the medical evidence, therefore, this authority is also not applicable to the facts of the present case.
(6) In the case of Karam Ellahi (PLD 1992 Pesh 111). It is held that offence against accused would fall under second part of section 324, P: P. C. Which in turn would fall under section 337-E(2), P.P.C. And punishment for which is provided under section 337-F(ii) .P.P.C. Offence against accused did not fall under prohibitory clause of section 497(1), .Cr.P.C. Accused was granted bail in the circumstances. This authority in my humble view is also not applicable. As already pointed out the allegation against accused/applicant is that he had caused hatchet injury on the face of the injured A.I Ghulam and that teeth of the injured were broken and the Medical Officer has certified the injuries to be grievous in nature and is punishable under sections 337(i) and 337-D Qisas and Diyat Ordinance which is punishable up to 10 years R.I. The offence with which the 'accused is charged is punishable up to 10 years, as such it is within prohibitory clause of section 497, Cr.P.C., therefore, this authority is also not applicable so far the case of the present applicant/accused is concerned.
(7) In the case of Muhammad Anwar Samma (1976 SCMR 168) it is held that medical report not disclosing any injury either such as likely to result in death in usual course of nature or such as could be so imminently dangerous as to be likely to cause death. Prima facie on the basis of material on record no clear case for the offence charged made out and the case as laid down in F.I.R. Not coming within the mischief of section 497(1), Cr.P.C. This case of Honourable Supreme Court in my humble view is not helpful to the case of the present applicant/accused Sahib Dino.
5. I have heard Mr. Muhammad Ashraf Leghari, Advocate learned counsel appearing for the State who has contended-that specific role of causing hatchet injury on the face of injured A.I Ghulam is assigned to the accused /applicant. According to the medical certificate injuries so caused are grievous in nature and are likely to fall under sections 337(i) and 337-D which is punishable up to 10 years R.I. Accused was arrested on 28-6-1994 and that on 29-6-1994 blood--stained hatchet was secured from him by the police. So far the recovery is concerned Mr. Faiz Muhammad Qureshi learned counsel for the applicant has pointed out that there was sufficient time to the accused to wipe off the hatchet so as to destroy the circumstantial evidence.
6. I have gone through the material placed on record. The applicant is alleged to have caused hatchet blows on the face of the injured A.I Ghulam. According to medical certificate the injuries are certified by the Doctor to be grievous in nature and the offence is likely to fall under sections 337(i) and- 337-D which is punishable up to 10 years R.I.
7. The contention of the learned counsel for the applicant that the names of the co-accused Ganwar, Mehrab and Wasno are placed in Column No.2 of the challan and the story of the prosecution is not accepted by the Investigating Agency to be correct one, therefore, benefit of doubt may be given to the accused. The contention of the learned counsel is not acceptable because the Honourable Supreme Court has in a number of cases, having regard, social conditions obtaining in the country, ruled that the principles of falsus in.Uno falsus in Omnibus, cannot be made applicable to the administration of criminal justice and the Courts are under duty to sift the grain from chaff. Admittedly 3 co-accused have not caused any injury to the injured and merely that their names are placed in Column No.2 of the challan by the police is not sufficient to hold entire prosecution as doubtful.
8. As discussed above accused/applicant is assigned a specific role of causing voluntarily grievous hatchet injuries on the face of the injured, prima facie, the accused/applicant stands charge- sheeted for an offence punishable up to 10 years R.I. As such case for bail is not made out and the application is rejected.