MUHAMMAD AFZAL SOOMRO, ].- By this order I propose to dispose of Criminal Bail Application No. 389/2002 filed on behalf of applicants (1) Qutbuddin (2) Qamaruddin (3) Abdul Hakeem (4) Ali Ahmed and (5) Lai Muhammad All Mahar by caste in Crime No. 2/2002 registered at P.S. Khadhari for offences u/Ss. 302, 324, 364, 396, 148, 149, PPC and 17(4) Offence Against Property (Enforcement of Hudood) Ordinance, 1979 and 13-D Arms Ordinance.
2. The bail plea of the applicants for bail before arrest was declined by the learned Sessions Judge, Sukkur vide order dated 6.3.2003.
3. The prosecution story as un-folded in the F.I.R, is that on 15.4.2002 at 1.00 p.m. Complainant Abdul Sattar Mahar appeared at P.S., Khadhari and lodged an F.I.R, the details whereof are given as under:- "Complaint is that I am related to one Bashir Ahmed Mahar, I had some dispute with them over the tethering of cattles and due to that reason we are annoyed with each other. I had one tractor, which was being played/driven by one driver Shamsuddin s/o Gulzar Ahmed. My brother namely Abdul ]abbar also looks after the tractor along with driver. On the day of incident, in the morning time, my brother Abdul Jabbar, driver Shamsuddin and nephew Muhammad Yaseen s/o Abdul Rahim had gone to take wooden bars of Abdul Hayee Mahar. When we are returning towards our village after completing our }ob, and at about 12.00 noon, when we reached near Shah Bello (Forest), we saw accused persons, (1) Ghulam Shabhir, (2) Aqil, (3) Mangh, all the three sons of Yar Muhammad, who were aimed with K.Ks., (4) Abdul Hameed gun, both sons of Maroof, (6) Walidino armed with pistol, (7) Shah Nawaz with K.K., both sons of Allah Nawaz, (8) Meerai alias Nakho armed with K.K., (9) Abdul Sami armed with K.K., (10) Abdul Rasooi alias Daloo armed with K.K., all three sons of Abdul Rehman, (11) Asadullah s/o Mehar armed with gun, (12) Bashir s/o Walidino armed with rifle, (13) Qutbuddin, (14) Qamaruddin, (15) Abdul Hakeem, all three sons of Sohharo, (16) Ali Ahmed, (17) Lai Muhammad, both sons of Ali Sher, all armed with K.K., all caste Mahars, all resident of village Bindo Shah Bello, Taluka Pano Akil, wer standing there. All the accused persons raised their arms and asked the driver Shamsuddin to stop the tractor, who due to fear stopped the tractor. Accused Shabir told us that your people have been fighting with us on the issue of cattle theft and now we will not spare you. Accused Shabir also tried to take away the key of the tractor from switch board, and on that we resisted. On our resistance, the accused Shabir fired from his K.K.
Towards my brother Abdul Jabbar, which hit him on his leg. Accused Shah Nawaz with the intention of murder fired at Muhammad Yaseen, which hit him on hi foot, and other accused persons also fired at us, be we, due to fear lie down on the ground, and saved our lives, and also remained quit.
The accused persons then took the driver Shamsuddin and tractor, along with them. After a little while, when the accused person moved, the accused AII Ahmed and Qutbuddin fired from their K.K.
And murdered Shamsuddin. Then the accused persons, took away ? The tractor. On the voice of the i.e-arms, the persons came from village Hakim Mahar and with their help, I have come on the donkey cart and report that the accused persons duly armed with deadly weapons and in collusion with each other had murdered driver Shamsuddin, and had also injured Abdul jabbar and Muhammad Yaseen and have also robbed our tractor. I am complainant, justice be done."
Besides there is also a counter version of this case, the details whereof are also reproduced hereunder:- "Complaint is that Fullan and Abdul Hareem are relative inter se. They have some dispute over the tethering (tiding and un-tiding) of the cattle. On the day of incident i.e. 15.4.2002, I along with Ghulam s/o Maroof, and Nawab s/o Maroof, and Nawab s/o Yar Muhammad, all Mahar by caste, R/o Hussain Belle, Taluka Pano Akil, had gone for some work and to see dargah's of saint's. When we were returning towards out village, and reached near Shah Bello (Forest) at about 12.00 noon, we saw accused, (1) Abdul Hareem armed with K.K., (2) Abdul Wahab armed with gun, both sons of Lai,
(3) accused Ghulam Rasool s/o Gulsher, armed with K.K., (4) accused Rasool Bakhsh s/o Abdul Hareem, armed with gun, (5) Rasoolo s/o Fateh, armed with gun, (6). Shakoor s/o jalal, armed with rifle, (7) Nazeer s/o Shanoo, armed with gun, all by caste Mahars, all i.e Peer Musafir, Taluka Pano Akil, were standing there. Out of them, accused Abdul Hareem told Ghulam that we will not spare you as we have the dispute over cattle. On this accused Abdul Hareem fired from his K.K. Which hit Ghulam near the left arm, who after raising the cries, fell down. Accused Abdul Wahab and Ghulam Rasool fired at. Me and one Nawab. The accused persons then after firing in the air went away and due to fear we fell down on the ground. I then went near to Ghulam, who was oozing the blood from the injury, and died on the spot. I then with the help of the villagers, took the dead-body of Ghulam and went to her village for informing out nekmard Abdul Salam Mahar, but he was not present in his house, I waited for nekmard, who came at about sun-set time, and whom I narrated the entire facts. The nekmard directed me to goto Police Station, Khaderi and lodge the report. Now I have come and report that the above named accused persons came and accused Abdul Hareem, due to enmity on the dispute of cattle, intentionally, armed with deadly weapons has murdered Ghulam and they have also fired upon us with intention to commit murder. I am complainant, justice be done."
The investigation followed and in due course the applicants were sent up to stand trial in the Court of learned Sessions Judge, Sukkur whereas the remaining accused were shown absconding.
4. I have heard the learned counsel for the respective parties and perused the record.
5. It has been contended by the learned counsel for the applicants that the case against them is false and they have been implicated in the background of enmity, It has also been contended that as far applicants Qutbuddin and Ali Ahmed are concerned they were disclosed to be armed with klashnikov and were alleged to have fired in the air. That as far remaining applicants namely Qamaruddin, Abdu! Hakeem and Lai Bux are concerned they too were disclosed to be armed w 'i klashnikovs and fired at the complainant party but the m did not hit any body, It has further been contended that (\ th ig incriminating has been secured from the possession of the applicants, It has also been explained by the learned counsel for the applicants that besides there is also a counter version of this case which has been recorded as Crime No. 3/2002 registered at the same P.S., Khadhari. It has also been argued that in the counter case one of the person namely Sultan had died as a result of firing in between the parties. The case being of two cross versions it is yet to be determined as to which party is aggressor and which is aggressed. That all the material eye- witnesses P.W. Jalaluddin, P.W. Muhammad Umar, P.W. Nazar Muhammad P.W. Abdul Sattar and P.W. Sodho in their 164, Cr.P.C, statements did not support the case of prosecution. That the involvement of the applicants in the false case of this nature is due to mala i.e and ulterior reasons on the part of police is in collusion with the complainant party as they have been motivated at the instance of SHO. That women-folk of the applicants were arrested from houses and were taken to Police Station where they were detained and dis-graced at the P.S. At the instance of the complainant party. learned counsel in that eventuality placed reliance on the following case-laws in support of his contentions:--
(1) PLD 1972 SC 277 (Amirv. State).
(2) 1972 SCM R 682 (Mst. Shafiqan v. Hashim Ali and others).
(3) 1978 SCM R 346 (Muhammad Shaft v. Hakim Ali).
(4) PLD 1989 Kar. 37 (Ghulam Faruq and another v State).
(5) PLD 1990 SC 959 (Zaheeruddin and others State).
(6) 1996 SCM R 1845 (Shaheeb Mahmood Bhutt v. Iftikharul Haq).
(7) 1997 P.Cr.L.J. 762 (Ibrahim and others v. State).
(8) 1997 P.Cr.L.J. 834 {Maqsood Ahmed v. State).
(9) 1999 P.Cr.L.J. 1731 (Awal Gul and another v. State).
(10) 1999 SC 2621 {Muhammad Siddiq v. Tariq Mahmood and others).
(11) 2002 P.Cr.L.J. 1051 = 2002 PCrR (Larkana) 450 {Muhammad Murad v. State).
(12) An un-reported case in Cr. B.A. No. 501/2002 decided by this Court.
As against the arguments submitted by the learned counsel for the applicants Mr. Sher Muhammad Shar, AAG has raised no objection for the confirmation of bail as the two investigating agencies in their findings have disclosed that the applicants were not responsible for commission of crime and in view of the legal and factual position the applicants were It OF by the police under Section 497, Cr.P.C, but in the second thought they were joined as an accused to face trial.
6. I have given my anxious consideration to the arguments advanced by the learned counsel for the respective parties and am of the considered view that learned counsel for the applicants, has been able to make out a case for bail. By an order dated 1.8.2002, the applicants were granted interim ail and above are the reasons for its confirmation. Cr. B.A. o. 309/2002 stands disposed of.