1. ' By this order, I intend to dispose of criminal bail application filed on behalf of applicant Buxial son of Haji Abdul Rehman Saryo in a case bearing Crime No,180 of 2000 of Police Station K.N. Shah, District Dadu under sections 324, 337-A (ii), 337-F(ii) and 337-F(v), read with section 504, P.P.C. The bail plea of the applicant was declined by the learned 1st Additional Sessions Judge, Dadu vide order dated 7-2-2002.
2. ' The prosecution story as unfolded in the F.I.R. Is that on 14-11-2001 at 1-00 p.m. Complainant Mour son of Shadi Khan by caste Saryo appeared at Police Post Kakar and recorded a non-cognizable report which later on was incorporated in a book under section 154, Cr.P.C. By 3-00 p.m. The case of the prosecution in F.I.R. Is that on 14-11-2001 complainant alongwith his two brothers namely Muhabat and Mithal had gone on their lands in order to supervise their chilly crop. It has been further alleged that on the relevant date and time one Buxial alongwith others emerged there and he tried to dismantle the watercourse. It has further been alleged that at 10-30 a.m. Buxial, Raza Ali, Feroze Hussain and Riyaz all by caste Saryo emerged there and it is stated that Raza Ali was armed with licensed rifle, Buxial, Feroze Hussain and Riyaz were carrying hatchets. It is alleged that they extended Lalkara to the complainant party on which Buxial caused hatchet injuries to Mithal on his scapular region while Feroz Hussain gave back side hatchet blow to Muhabat which hit him on his parietal region, as a consequence whereof, he went unconscious, Riyaz gave hatchet blow to Muhabat hitting on his head. The second blow was landed on his right arm on which the complainant party raised cries and commotion whereafter accused Raza Ali opened fire in the air.
3. The culprits thereafter decamped from the scene of offence. The incident was witnessed by Shadi Khan and Master Ghulam Sarwar and on their intervention the complainant party was saved on being admonition in the name of "Allah". The investigation followed and in due course accused Feroz, Qamarauddin and Riyaz were let off by the police under section 497, Cr.P.C. As the evidence against them was found deficient whereas accused Raza Ali and Buxial have been sent up to stand trial.
4. ' I have heard Mr. Azizul Haque Solangi for the applicant, Mr. Asif Ali Abdul Razak Soomro for the complainant and Mr. Muhammad Isma il Bhutto, for the State and perused the record.
5. ' It has been contended by the learned counsel for the applicant that the case against applicant Buxial is false who has been implicated in the background of enmity as given in the F.I.R. It has also been contended that out of five accused, three co-accused namely, Feroz, Qamaruddin and Riyaz were let off by police which according to him has adversely reflected on the version of prosecution story. It has also been argued by him that the application for bail before arrest was made before the learned lower Court on behalf of co-accused Raza Ali, who was admitted to interim bail which later on was confirmed. As far as Buxial is concerned, according to the Learned counsel he was disclosed to be armed with hatchet and was alleged to have caused hatchet blow to Mithal brother of the complainant which hit him on left side of scapula which according to learned counsel was certified as Jurh Ghayr Jaifah Hashimah and the same is punishable up to five years.
6. The counsel argues that the punishment provided under the said provision of law is five years and goes out of the prohibition as contained in section 497.(i), Cr.P.C. For section 324, P.P.0 he argues that the offence though punishable up to ten years, calls for further inquiry. On all these scores, it has been contended by the learned counsel for the applicant that his client deserves the grace of bail being granted by this Court. Learned counsel for the applicant has placed reliance on the case of Abdul Salam v. The State (1980 SCM R 142), Ghulam Abbas v. The State (1996 SCM R 978), Abdul Sattar v. The State (1995 PCr.LJ 639), Allah Rakha alias Bodi and another v. The State and another (1993 SCM R 1994) and Muhammad Afsar v. The State (1994 SCM R 2051) in support of his contentions.
7. ' On the other hand, it has been contended by Mr. Asif Ali Abdul Razak Soomro, counsel for the complainant with the support of Mr. Muhammad Ismail Bhutto, learned counsel for the State.
8. According to them five persons namely Buxial, Feroze, Riyaz, Bagh Ali and Qamaruddin making themselves duly armed with different kinds of weapons such as, rifle and hatchets came at the place of occurrence and attacked the complainant party resulting various injuries on different parts of the bodies of injured persons. According to learned counsel as many as three persons namely Mithal, Muhabat and Mour had sustained injuries. The injuries sustained by Mithal has been certified as Ghayr Jaifah Hashimah and the punishment provided for that is up to five years. As far as Muhabat was concerned, injury No, 1 sustained by him was certified as Shajjah-i-Hashimah being punishable up to ten years, whereas injury No,2 which was certified as Ghayr Jaifah Hashimah being punishable up to five years. As far as injured Mour is concerned, as per medical certificate, he sustained three injuries which were certified as Shajjah-i-Hashimah i,e, under section 337-A (iii), P.P.0 and another injury as Ghayr Jaifah Hashimah which has been certified as 337-A (v), P.P.C. Which are punishable up to five and ten years respectively. It has also been contended by the learned counsel for the complainant that the Investigating Officer of this case has not conducted the investigation keeping in view the provisions of law and opinion formed by him is not based on the soundness of the material. According to him the opinion has not to be accepted in toto but it requires appreciation. He has relied on the case of Wajahat Ikram and another v. The State (1999 SCM R 1255) in support of his contentions.
9. ' Coming to the case of applicant Buxial Saryo, I have given my anxious consideration to the arguments of the respective parties and perused the record. Perusal of the F.I.R. Shows that applicant Buxial was armed with hatchet and was alleged to have caused hatchet injuries to Mithal which was certified by the medical officer as Ghayr Jaifah Hashima which is punishable up to five years. As for section 324, P.P.0 is concerned the same though is punishable up to ten years but it requires adjudication. Following the principle as laid down in the case of Muhammad Afsar v. The State reported as (1994 SCM R 2051) wherein the injury at the most was held under the provisions of section 337-F (ii) [as amended] and did not fall within the prohibitory clause of section 497, Cr.P.C.
10. The bail is granted to applicant Buxial son of Haji Abdul Rehman provided he furnishes surety in the sum of Rs,1,00,000 and P.R Bond in the like amount to the satisfaction of trial Court. Criminal Bail Application No,97 of 2002 stands disposed of.