1. WAHEEDUDDIN AHMED, J.-This petition is directed against the Order of a learned Single Judge of the Sind High Court in Criminal Bail Application No. 53 of 1978. By this order, the bail application of the petitioner was dismissed. At the preliminary hearing, notice was issued to the State for today.
2. The petition is converted into an appeal and is disposed of as such.
3. The petitioner had been challaned for the murder of Remain. The occurrence took place on 23-6- 77 at about 1 p. m. Within the jurisdiction of P. S. Tandojam. According to the F. I. R. Lodged from the side of the petitioner it was alleged that Khair Mohammad, Bhai Khan and Muhammad Alam have got their joint share in the land which is irrigated by 3-AR Husri Minor. Their turn of crater started according to the share list from 4-30 a. m. And ended at 1 p. m. The nest day. It is further alleged that at about 1 p. m. They heard the cries of Khair Mohammed. Thereupon Khair Mohammad, Ali Mohammed and Mitho went running. They saw Khamiso, Wali Mohammed. Imam Bux, Ramzan.
4. Malook, Taj Mohammed and Mushtaq standing armed with lathis and hatchets as well as spades.
5. They forcibly diverted the water into their land, and when the appellant party objected, the complainant started abusing them fight occurred between the parties during which the applicant Ali Mohammed who was armed with a double barrel gun used it in defence. It was not possible to know as to who got injured at whose hands but it was found by the comp--lainant that Khamiso.
6. Ali Mohammed and Ramzan were injured. It is who alleged that during the fight, Mitho applicant, gave a fatal blow with the hatchet to tie deceased and killed him.
7. Report on behalf of petitioners was filed at 2-30 p. m. And counter report on behalf of the complainant was filed at 3 p. m. On the same day. The complainant party has been challaned for trespass and mischief.
8. Mr. Aftab Ahmad Akhund the learned counsel for the petitioner has contended that the petitioner had a right of private defence and he, in the right of private defence, gave blow to the deceased with kulhari. According to him, the question whether the petitioner has exceeded the right of private defence, need further enquiry and he is entitled to be released on bail. In support of his contention, the learned counsel relied on Amir v. State (PLD 1972 S O 277).
9. On the other hand, Mr. Usman Ghani the learned A. A. G. For the State has contended that the question whether the petitioner had a right of private defence and whether he exceeded it could only be considered in the trial of the case sad it will be premature to release him on bail.
10. After hearing the learned counsel for the parties, we are of the opinion that in the circumstances of the present case 'prima facie it appears that the petitioner's side had a right of private defence.
11. The question whether he exceeded this right requires further enquiry.
12. We would, therefore, release the appellant on bail in the sum of Re. 20,000 (rupees twenty thousand only) with one surety in the like amount to the satisfaction of the Sessions Judge, Hyderabad. In the result, the appeal is accepted.