1. ' The S.S.P., Khairpur has brought the delinquent S.H.O. Of Police Station Tando Masti Khan in execution of the N.B.Ws. In custody and the said S.H.O. Has tendered his unconditional apology with an undertaking to be careful in future. He has also requested for withdrawal of N.B.Ws. The request is allowed and the N.B.Ws. Are withdrawn with a warning to him to be careful in future. The D.S.P., Gambat and the S.H.O., Tando Masti Khan are relieved.
2. ' So far as the Clerk, namely, Mazhar Ali Abro from the office of Addl. A.-G., who had misguided the S.H.O. On 7-5-2001 when he had brought the original medical certificate alongwith the letter and he did not inform the said S.H.O to appear in Court, is concerned the learned A.A.-G. Undertakes to initiate departmental action against the delinquent Clerk (Mazhar Ali Abro) accordingly.
3. ' Now reverting to the bail application of the applicant/accused is concerned:--- ' The applicant Dildar son of Imam Bux is facing trial in Sessions Case No,349 of 2000 in the Court of IIIrd Additional Sessions Judge, Khairpur for an offence under sections 324, 147, 148 and 504, P.P.C., in Crime No,77 of 2000 of Police Station Tando Masti Khan, District Khairpur. The applicant/ accused was arrested during the course of investigation and after completion of investigation charge-sheet was submitted and thereafter, the bail plea was moved in the trial Court. The bail application tiled on behalf of the present applicant/accused was dismissed by the learned IIIrd Additional Sessions Judge, Khairpur on 16-1-2001.
4. ' Briefly stated, the facts of the prosecution case as enumerated in the F.I.R., are that on 5-10-2000 one Muhammad Wasim Khoso lodged the F.I.R. At Police Post Kolab Jial, which was subsequently incorporated in 154, Cr.P.C. Book at Police Station Tando Masti Khan, alleging therein that he is hart so also his sister's son whose water rotation was from 7-00 to 8-00 p.m. Who had gone to his land for his turn of water. At that time, he, Koural and Ahmed were chit chatting together near Imam Bargah. The electricity bulb was on when at 9-00 p.m. His sister's son Abdul Jabbar Khoso came on road after completing his turn of water and within their sight the present applicant who was armed with hatchet whereas co-accused Gulzar, Mithal and Manghar having lathies chased him and after abusing him raised hakal that they will not be spared, saying so the present applicant with intent to commit murder inflicted sharp side hatchet on his head who fell down while raising cries and rest of the accused caused lathi blows Abdul Jabbar raised cries on which the complainant gave hakal to the accused thereafter all the accused went away to their house alongwith weapons. The complainant then found that injured Abdul Jabbar having injury over his head and was bleeding and was unconscious. The complainant then took injured Abdul Jabbar with the help of P.Ws. And thereafter, of the basis of Roznamcha entry which was incorporated at P.P. Kolab Jial and thereafter, incorporated in 154, Cr.P.C. Book the F.I.R. Was registered at Police Station Tando Masti Khan.
5. ' It is contended by the learned counsel for the applicant that the applicant/accused has been implicated falsely in the case. It is further urged by the learned counsel that medical certificate shows the injury as Shuja-i-Madiha which is punishable for 5 years, and the applicant is entitled for grant of bail as the punishment does not fall within the prohibitory clause. It is further urged that the applicant/accused is in jail since 13-10-2000 and the trial Court has not proceeded with the case and the applicant/ accused in rioting without trial. It is further said by the learned counsel for the applicant that co-accused namely Gulzar, Aslam, Mithal and Manthar have caused injuries to injured but according to medical certificate but no had and blunt substance injury was declared in the said medical certificate, therefore, the medical certificate filed obtained by the complainant is manipulated. Learned counsel for the applicant/accused has relied upon the case of Chughta v.
6. The State, reported in 1992 PCr.LJ 2516 wherein it is held that accused had caused only one injury to P.W. And did not try to repeat the same and the case of the accused/applicant is of further enquiry and the bail was granted. In case of Zulfiqar v. State, reported in 1993 PCr.LJ 2285. The operative part of the said decision is reproduced as under:--- "I believe that the intention to kill remains yet to be determined at trial, because the petitioner had gone to fetch his children to the house of his closest of relatives. He could have done and was in a position to do more harm than he actually did. The investigation is over and the petitioner is no more required to be detained and thus, is directed to be released , on bail provided he furnishes bail bond in a sum of Rs,50,000 with two local, reliable and resourceful sureties each in the like amount to the satisfaction of Illaqa Magistrate alone."
7. ' In case of Allah Rakhio v. The State, reported in 1993 SCM R 1994, the Hon'ble apex Court while dilating the injury (Shuja-iMadiah) it has been held that said injury do not fall within the prohibitory clause of section 497, Cr.P.C. And bail concession was extended by the Hon'ble Supreme Court only on the ground that the offence did not fall within the prohibitory clause. In another case of Jan Muhammad v. Haji Noor Jamal and others, reported in 1998 SCM R 500. In this case the Hon'ble Supreme Court has extended bail concession to the applicant Jan Muhammad. The operative part of the said authority is reproduced as under:-- "The petition was opposed by Mr. A.G. Mangi, learned Advocate-General who argued that intention of the petitioner in causing injuries to the complianant cannot be other than to kill him, as one of the injuries was caused on left side of forehead.
8. ' In light of the provisions contained in section 324, P.P.C. Read with section 337, P.P.C., we agree with the submissions made by the learned counsel for the petitioner. We agree with him that present case is not covered by the prohibition contained in subsection (1) of section 497, C r. P. C .
9. ' Consequently, we convert this petition into appeal and directed the appellant to be released on bail if he furnishes two sureties in the sum of Rs,fifty thousand each to the satisfaction of the trial Court and executes a P.R. Bond in the like amount."
10. ' The learned counsel for the applicant has also relied upon unreported case of Criminal Bail Application No,397 of 1998 in which Panah Ali Shah was granted bail.
11. ' Mr. Muhammad Iqbal Memon, the learned counsel for the State has opposed the bail application on the ground that specific role has been attributed to the applicant/accused and the applicant/accused is not entitled for concession of bail. The latter had admitted that in the medical certificate it is opined the injury as Shuja-i-Madiah, which is punishable for 5 years, ' I have heard the arguments advanced by the learned counsel for the applicant/accused and the learned State counsel and have also gone through the material placed on record in view of the dicta laid down by the Hon'ble Supreme Court and the other Courts.
12. ' Admittedly, the applicant/accused is in custody since 13-10-2000, there is no development in the trial of case of the applicant/accused and according to medical certificate the injury is described as Shuja-iMadha and it is yet to be established by the learned trial Court about the intention of accused whether he intended to kill the complainant while inflicting the injury.
13. ' In view of factual and legal aspect the case of the present applicant requires further enquiry as contemplated under section 497(2), Cr.P.C. Consequently, bail is granted to the applicant in the sum of Rs,One lac and P.R. Bond in the like amount satisfaction of the trial Court.