MUHAMMAD HAYAT and 2 others vs THE STATE

ORDER

1. ' BIN YAMIN, J.---Applicant Muhammad Hayat and others have made this application for grant of bail as they are detained in case F.I.R. No,60 of 2007 registered under sections 302, 324, 337-A(i), A(ii), 337-F(i), F(ii), 147 and 148, P.P.C.

2. ' Brief facts of the case are that on 19-6-2007 at about 1815 hours complainant Shafi Muhammad lodged F.I.R. With Police Station Taluka Nawabshah stating therein that his brother-in-law has a dispute over a plot with accused Madad Ali. He further stated that on that day he along with his brother deceased Mir Hassan and P.Ws. Muhammad Hussain, Ghulam Farid, Atta Muhammad and other family members were present in their house when accused Madad Ali Jamali called them towards the disputed plot where Madad Ali Mukhtiar, Ghulam Qadir, Piyio Khan, Mohabat Ali, Muharram Ali, Younis along with four unknown persons were available there. Thereafter, it is alleged that accused Madad Ali abused and attacked the complainant party whereby complainant and others sustained lathis and hatchet injuries. As a result of said injuries Mir Hassan died on the way to hospital. It is further alleged that the incident was witnessed by P.Ws. Abdul Rahman Jamali, Jan Muhammad, Wali Jan and Zaibunisa. After recording. F.I.R. Of the incident, during investigation police arrested applicants/accused and others. It is also claimed by the complainant that in their self-defence they inflicted some injuries to the accused party. Since the time of their arrest in this case, applicants/accused are detained in custody.

3. ' Earlier Bail Application on behalf of applicant/accused was made before learned Sessions Judge, Nawabshah, which was rejected by him vide his order, dated 26-9-2007, hence this bail application.

4. ' Heard Mr. Hidayatullah Abbasi, Advocate for the applicants/accused. Mr. Allah Bachayo Soomro for the complainant and Mr. Muhammad Azeem Panhwar for the State, also perused the case papers.

5. ' Learned counsel for the applicants/accused contends that the accused are residing in the same locality and are also caste fellows of complainant party. But their names does not find place in the F.I.R. Of the matter. It is further case of prosecution that subsequent to the lodging of F.I.R. During investigation some of the witnesses have implicated the applicants/accused in this case by deposing before the police that at the time of_ this incident applicant/accused were also with the accused persons, duly armed with hatchet and lathis. Subsequently statements of two of the witnesses regarding the involvement of the applicants/accused in this case, was also got recorded before the Magistrate under section 164, Cr.P.C. He further contended that as per post-mortem report of deceased Mir Hassan, he has died as a result of injuries sustained by him with sharp cutting weapon and no injury of lathi was found on his person. He further contended that in fact the applicants/accused has gone behind the accused persons, when they were in police custody, therefore, because of this fact the witnesses have involved them falsely in this case. That there exist no reasonable grounds to believe that the applicants/ accused have committed an offence punishable with death or imprisonment for life. The case of the applicants/accused at this stage can be termed as a case of further inquiry. He, therefore, requested for grant of instant bail application and release of the applicants/accused on bail during pendency of this case. In this respect he has relied upon the case reported in 2003 SCM R 426. In the reported case bail was granted to the applicants/accused, whose names were not mentioned in the F.I.R.

6. ' Mr. Soomro appearing for the complainant has strongly opposed this bail application and submitted that the applicants/accused have been involved in the murder case by two of the witnesses, whose statements have been recorded under section 164, Cr.P.C. Before the Magistrate.

7. The case is at preliminary stage and evidence of none of the prosecution witnesses has been recorded, therefore the applicants/accused are not entitled to the concession of bail at this stage, he therefore, requested for rejection of this bail application.

8. ' Learned State counsel submits that this is a case in which the names of the applicants/accused do not find place in the F.I.R., though the complainant party as well as applicants/accused are caste fellows and residents of the same locality, therefore, he submitted that bail application may be decided on the basis of material available on record.

9. ' Perusal of F.I.R. Shows that the names of applicants/accused are not mentioned in the F.I.R. As a culprit of this case and their names were subsequently given by the witnesses before the police/Magistrate in their statements recorded under sections 161/164, Cr.P.C. The applicants/ accused and complainant party are caste fellows and are residing in the same locality, but their names do not find place in the F.I.R. These facts show that the case of applicants/accused at this stage falls within the purview of a case of further inquiry.

10. ' As a result of afore-noted discussion, I am of the opinion that the applicants/accused at this stage are entitled to the grant of bail, therefore, I allow this application and order that the applicants/accused be released on bail on their furnishing surety in the sum of Rs,2,00,000 each and PR bond in the like amount to the satisfaction of Trial Court.