' By this order I intend to dispose of Criminal Bail Application No,531 of 2000 in a case being Crime No,34 of 2000, registered with Police Station Sarhad under sections 336, 337-A(i), 337-H(ii), 504, 114, 147, 148 and 149, P.P.C. The bail application on behalf of the applicant was moved in the Court of IInd Additional Sessions Judge, Ghotki, which was dismissed by him, vide order, dated 14-9-2000.
2. The brief facts giving rise to the present application are that on 29-5-2000 at about 3-00 p.m., complainant Mst. Mooran wife of Sachoo Pahore appeared at Sarhad Police Station and lodged F.I.R., the details whereof show that on the same date at about 2-00 p.m. As the complainant and her daughter Mst. Taj wife of Dodo Pahore were washing utensils from the watercourse behind their houses, in street, where accused namely Angan, being empty-handed, Sachal, Imam Bux, Khadim, Qasim, Abid, Hakoo, Habib, Rano, duly armed with Lathis, Mir, being armed with rifle, Ghani, armed with gun, emerged there. Angan abused and disclosed that she has always been dragging them in the Courts of Law and that they have made their lives miserable. At this the complainant stopped him from abusing but in the meanwhile accused Angan instigated other accused that they should not be spared. Then accused Khadim gave Lathi blow to the daughter of complainant namely Mst.
Taj, which hit her on her mouth, as a consequence whereof she started raising cries which attracted Saindino son of Farid Pahore and Mst. Soni wife of Sattar Dino Pahore, who came running.
On their intervention and admonition on Holy Qur'an they were saved. Thereafter, accused Ghani and Mir decamped towards their houses by making random firing. Complainant then took her daughter Mst. Taj to Police Station and lodged F.I.R. Alleging that the above-named accused in the prosecution with their common object, forming unlawful assembly and at the instigation of Angan, accused Khadim gave Lathi blow to the daughter of complainant. The motive disclosed in the F.I.R.
Is said to be enmity over landed property which appears to be 6/7 months old in which relative of complainant party namely Akbar Pahore was killed and Abdul Rehman, brother of Akbar had filed a case against Angan Pahore and his relatives, which annoyed the accused Angan and others. The present dispute was a consequence of that quarrel.
3. Besides this, there was also a counter-version of this case, which was recorded at the same police station on 29-5-2000 at 4-00 p.m. Vide Crime F.I.R. No,35 of 2000, Police Station Sarhad.
According to the First Information Report the incident had taken place at about 2-15 p.m. On the same date. It has been alleged in this F.I.R. That they had an old dispute on landed property against Jamal Pahore and others. Six/seven months prior to the incident Akbar Pahore, a relative of Jamal Pahore had committed suicide by taking poison. Abdul Rehman, brother of Akbar was suspecting the complainant party about this episode which annoyed them. On the eventful day, at about 2-15 p.m. Complainant was standing outside his house, when Jamal, Kamal, Saindino, Khadim Hussain, Hazoor Bux, Barouch, all duly armed with Lathis, Mst. Mooran, Mst. Papul, Mst Taj, Mst. Qaima, Mst.
Soni, Mst. Mubarkan and Mst. Bakhshal, all by Caste Pahore, residents of Village Suleman Pahore, being empty-handed, emerged there. Jamal abused and disclosed that as to why they were not coming on terms of settlement which resulted in abuses. At this all the accused made him to fall on the ground and gave him Kicks and fist blows. He raised cries which attracted Mst. Kazi, Mst.
Mubarkan, Saddam Hussain and they came running and intervened. The accused Jamal then gave Lathi blow to Mst. Kazi, accused Kamal gave Lathi blow to Mst. Mubarkan and accused Hazoor Bux caused Lathi injury to Saddam Hussain. Ladies also participated in the fight by giving kicks and fist blows. On cries Imam Bux, brother of complainant and Karam son of Qadir Pahore came running by giving Hakals. Upon the arrival of other side the accused bolted from the scene of offence alongwith their ladies. On verification it was found that Mst. Kazi had sustained injury on nose, left side cheek and left arm. Mst. Mubarakan sustained injury on right arm and Saddam Hussain also sustained injury on right arm. Complainant took the injured to police station where the F.I.R. Was recorded under sections 337-A(i), 337-F(i), 147, 148 and 504, P.P.C.
4. The investigation followed and in due course the applicant was sent up to stand trial in the Court of learned llnd Additional Sessions Judge, Ghotki.
5. I have heard the learned counsel for the parties and perused the record.
6. It has been argued by the learned counsel for the applicant that it is a case of cross-versions and point of aggression is yet to be determined. It has been further argued that accused Muhammad Sachal, Angan, Imam Bux and Muhammad Qasim were granted bail by the learned trial Court vide order, dated 15-9-2000 and Abid, Mir Muhammad, Hakim Ali, Habibullah and Rano were granted bail on 26-8-2000. The bail plea of the applicant Khadim was dismissed by the learned trial Court on the ground that according to the F.I.R. He was armed with Lathi and gave Lathi blow to Mst. Taj, which landed on her mouth and the Medical Officer described the injury as "Itlaf-i-Tooth", being punishable for 10 years. It has been further argued by the learned counsel for the applicant that as against the opinion of the Medical Officer, who had issued the certificate, dated 17-6-2000, a special Medical Board of Doctors, was constituted by the Civil Surgeon, Civil Hospital, Sukkur, on 12-10-2000, comprising Dr. Chandar Bhan, Dental Surgeon, Taluka Hospital Ghotki, Dr. Arbab All Malik, Medical Officer, Taluka Hospital Ghotki. On 21-10-2000 Mst. Taj wife of Dodo Pahore appeared before the Medical Board of Doctors and after thorough , examination it was found that both the members of the Special Board (Dental Experts) are of the opinion that the upper left central incissor tooth was diseased (Alveolar bone resorption) and the injuries mentioned by the Dental Surgeon Ghotki are minor and these injuries can exfoliate the complete tooth from the socket. It was found that the opinion given by the Medical Officer is not correct. It was further found that in view of the above fact the Special Medical Board is of the opinion that the nature of the injury determined by the concerned Medical Officer, in the medico-legal certificate as "Itlaf-iTooth", on the basis of the opinion given by the Dental Surgeon, Taltika Ghotki, is not correct.
The counsel further argued that eventually the case would fall under section 337-U, P.P.C. (Arsh for teeth) which comes to one-twentieth of Diyat and for that no punishment is prescribed. It has also been argued by the learned counsel for the applicant that Jamal, Kamal, Saindino, Khadim Hussain, Hazoor Bux, Barouch accused in the counter-case were granted bail by the learned trial Court vide order, dated 2-6-2000 and the case of the present applicant may also be treated at par with that of the accused who have been granted bail. The counsel for the applicant in support of his contentions has referred to the following citations:--
(i) Shoaib Mehmood Butt and others v. The State 1996 SCM R 1845, (ii) Mehmood Hussain v. The State 1993 PCr.LJ 623, (iii) Haji Maauddin v. The State 1998 SCM R 1528, (iv) Muhammad Anwar v. The State 1983 SCM R 1001 and (v) Muhammad Ayub and others v. The State 1980 PCr.LJ 600.
7. The learned counsel for the complainant Mr. Ghulam Shabbir Shar opposed the grant of bail to the applicant on the grounds that the injury caused on vital part of Mst. Taj which has been determined by the Medical Officer as "Itlaf-i-Tooth" and that punishment provided therefor is 10 years as Tazir. He has also argued that there is recovery of Lathi from the applicant though not blood-stained.
8. Mr. Nizamuddin Brohi, the learned counsel for the State, while fairly conceding to the grant of bail, argued that it is a case of two cross-versions and it is yet to be seen as to which party is aggressor.
That in view of the Medical Board of Doctors it is found that the opinion regarding the injury described by the First Dental Surgeon as "Itlaf-i-Tooth" has been reversed and eventually the case would fall under section 337-U, P.P.C. (Arsh for teeth) which comes to the one twentieth of the Diyat and for which no punishment is prescribed.
9. In the light of the arguments advanced by the parties, I am of the view that the applicant has successfully made out a case for bail in terms of section 497(2), Cr.P.C. He is directed to be released on bail in the sum of Rs,1,00,000 (one hundred thousand) and P.R. Bond in the like amount to the satisfaction of the trial Court. By my short order, dated 2-11-2000, I had granted bail to applicant and above are the reasons for the same.