' This bail application has been filed on behalf of the applicants/accused Ibrahim, Abdullah and Mehmood all sons of Mitho Khan by caste Khoso who are facing trial under sections 147, 148, 149, 337-H(ii) and 324, P.P.C. Before Sessions Judge, Umerkot.
2. Brief facts of the prosecution case as stated in F .I.R . Bearing No,25 of 1995 lodged by complainant Abdul Karim at Police Station Samaro on 27-8-1995 are that complainant is Zamindar and one Umerdin is his cousin. He owns land so also his cousins, and their holding is joint. On 26-8- 1995 in the morning complainant, Ghulam Mustafa Bhambhro, Nur Muhammad Solangi and Nadir Ali Bhambhro were cutting the bushes and fixing the hedge when at about 5-30 p.m. Muhammad Ibrahim Khoso came and prevented them from cutting the bushes, whereupon complainant replied him that land belongs to him and they have every right to cut the bushes. On this Muhammad Ibrahim fired directly on them but they fell down. However, small girl Mst. Bhag Bhari daughter of Ishaque Machi who was in her house received fire-arm injuries. In the meantime Mehmood, Abdullah Khoso, Mehar Nohani, Badal Nohani and Abdullah Nohani and others who were armed with guns Kalashnikovs also fired with intent to kill. Due to fear they retreated. The accused fired for the whole night and Ibrahim was armed with Kalashnikov.
' On the other hand one Abdullah Nohani from applicants/accused side lodged counter F.I.R. Vide Crime No,26 of 1995 on the same day i,e, 27-8-1995 at Police Station Samaro which was registered under sections 324, 337-A(2), 147, 148 and 114, P.P.C. Wherein it is stated that he is Zamindar and he cultivates his own land. On 26-8-1995 he had gone to Rajwah on his land which is situated in- between Rajwah and Hanifabad. After completing his work, he was going to his village and his father Badal was following him and when at about 5-30 p.m. They reached at uncultivated land i,e, place of incident they found Muhammad Hashim, Waheed Kaimkhani, Ghulam Bhambhro, Kako Bhambhro, Nooro Machi, Shah Nawaz Kaimkhani, Akbar Machi, Muhammad Hussain, Umer Din Bhambhro and others standing. Hashim Bhambhro shouted and told him that as to why he was passing from there, whereupon he replied that it is a common path and he was going to his village.
On which Muhammad Hashim instigated Waheed Kaimkhani to catch hold of complainant and not to spare him, whereupon Waheed Kaimkhani fired with his gun at him due to which he sustained fire-arm injuries on neck. The other accused who were armed with guns also fired in air. Due to fear he (complainant) fell down and concealed himself in the adjoining 'Jantar' crop where Ibrahim had also concealed himself. They remained in 'Jantar' crop for the whole night as accused were firing in the night.
4. The applicants/accused applied for bail before arrest and they were granted interim pre-arrest bail by the learned Sessions Judge, Umerkot on 3-9-1995. The applicants/accused were attending the Sessions Court regularly till the case was transferred to the Court of Suppression of Terrorist Activities, Hyderabad. After the abolition of S.T.A. Courts case was again sent back to the Sessions Court, Umerkot. The applicants/accused did not attend the S.T.A. Court as well as Sessions Court, therefore, their bail was cancelled and non-bailable warrants for their arrest were issued and in pursuance of N.B.Ws, they were arrested and remanded to judicial custody.
5. The applicants/accused filed bail application in the trial Court and by impugned order dated 12- 3-1998 bail plea of applicants was rejected.
6. Mr. N.H. Pirzada, learned counsel for the applicants/accused has contended that the applicants/accused were regularly attending the Sessions Court and when case was transferred to S.T.A. Court they did not receive any notice of transferee Court and when case was again sent back on the abolition of S.T.A. Court no notice of Sessions Court was served upon them; that the applicants/accused who are illiterate persons and are residing in rural areas were ignorant of the transfer and again receipt of the case by the learned Sessions Court; that no proclamation under section 87, Cr.P.C. Was issued against them nor any action under section 88, Cr.P.C. Was taken by both the Courts, therefore, they cannot be termed as fugitive from law; that the case is false, concocted one and is outcome of enmity; that there are counter-versions of the incident and one Abdullah on their side received fire-arm injuries at the hands of complainant party; that section 324, P.P.C. Is not attracted to the facts of the case as intention of causing death is lacking in the matter; that the case necessitates further enquiry as contemplated under section 497(2), Cr.P.C.
And applicants/accused are entitled to bail.
7. Mr. Ghulam Shabbir Memon, learned counsel for the State has frankly conceded to the arguments of learned counsel for the applicants/accused and has raised no objection to the grant of bail.
8. I have carefully considered the arguments of learned counsel for the applicants/accused and learned counsel for the State. I have also perused the impugned order and material placed on record.
9. The applicants/accused were granted interim pre-arrest bail on 3-9-1995 by the learned Sessions Judge, Umerkot. Case diaries from 3-9-1995 to 19-5-1996 placed on record reveals that till 19-5-1996 they were attending the Court regularly. The impugned order of learned Sessions Judge shows that the case was made over to learned Additional Sessions Judge, wherefrom on 30-9- 1996 it was transferred to the S.T.A. Court, Hyderabad where applicants/accused did not appear and on 20-1-1997 R & P was received back by the Sessions Court. The learned Sessions Judge ordered N.B.Ws. Against the applicants/accused and in pursuance of N.B.Ws. They were arrested and produced on 26-2-1998 when they were remanded to custody. The impugned order is silent on the aspect that any notice issued by S.T.A. Court or by Sessions Court was ever served upon the applicants/accused. The order does not show that any proceedings under section 512, Cr.P.C. Were initiated or proclamation under section 87, Cr.P.C. Was issued and action under section 88, Cr.P.C.
Was taken against the applicants/accused, therefore, under peculiar facts and circumstances of the case it cannot be termed that applicants/accused were fugitive from law. The injury under section 337-H(ii), P.P.C. Is punishable with three months, or with fine or with both, therefore, it does not fall within prohibitory clause of section 497(1), Cr.P.C. There are two versions of the incident and it will be yet determined at the time of trial as to which party was aggressor. Injuries of fire-arm on the person of accused Abdullah Nohani (complainant of counter case) are suppressed by the complainant party. The vicarious liability or common intention could be determined after the evidence is recorded by trial Court till then the applicants/accused are entitled to bail.
10. In the case of Shahid v. The State, reported in 1994 SCM R 393, bail was granted by Honourable Supreme Court on the ground that it was yet to be determined whether the accused had facilitated the commission of the offence to attract provisions of section 34, P.P.C. Making out a case for further enquiry.
11. In the recent decision of Honourable Supreme Court in the case of Muhammad Shafiq and another v. The State, reported in 1998 SCM R 526 bail was granted on the ground that reasonable grounds did not exist to believe that accused has committed murder of the deceased, or an offence punishable with death or imprisonment for life or ten years.
12. In the case of Shoaib Mehmood Butt v. Iftikhar-ul-Haq and 3 others, reported in 1996 SCM R 1845 Hon'ble Supreme Court dismissed application for cancellation of bail on the ground that there were counter-cases between the parties. The relevant dicta laid down by the Hon'ble Supreme Court is reproduced hereinbelow: "16. In case of counter-versions arising from the same incident, one given by complainant in F.I.R.
And the other given by the opposite-party case-law is almost settled that such cases are covered for grant of bail on the ground of further enquiry as contemplated under section 497(2), Cr.P.C. In such cases normally, bail is granted on the ground of further enquiry for the reasons that the question as to which version is correct is to be decided by the trial Court which is supported to record evidence and also appraise the same in order to come to a final conclusion in this regard. In cases of counter-versions, normally, plea of private defence is taken giving rise to question as to which party is aggressor and which party is aggressed. In the case of Fazal Muhammad v. Ali Ahmad (1976 SCM R 391) in cross-cases the High Court granted bail to the accused on the ground that there was probability of counter-version being true as some of the accused had received injuries including a grievous injury on the head of one accused. It was held by this Court that in such circumstances the High Court was right in granting bail and no interference was warranted. In the same context, reference can be made to the case of Mst. Shafiqa v. Hashim Ali and others (1972 SCM R 682)."
13. There is yet another aspect of the case which requires consideration is that the bail was granted on 3-9-1995 and there was no allegation against the applicants/accused that they had ever tried to misuse the concession of bail.
14. For all the reasons stated above and considering the precedent case-law discussed above and the fact that the learned State Counsel has also rightly conceded to the grant of bail, I am of the considered view that the case of the applicants/accused requires further enquiry under subsection
(2) of section 497, Cr.P.C. And they are entitled to bail.
15. On 25-5-1998 I granted bail to the applicants/accused by short order and above are the reasons of the said short order.
16. The above observations are of tentative nature and the learned trial Court will not be influenced by these observation ;. The trial Court will be at liberty to reach at its own conclusion on merits after recording the evidence.