GADAL vs THE STATE

ORDER

1. ' KHALID ALI Z. QAZI, J.--- Bail is claimed by Gadal Jakhrani, who is facing trial in F.I.R. No,44 of 1998, for offence under sections 302, 324, 114, P.P.C. Of Police Station Bahoo Khoso, District Jacobabad, in the Court of 1st Additional Sessions Judge, Jacobabad.

2. ' The brief facts as prosecution case as per F.I.R. Are that Mir Muhammad and others are cousins of the complainant and they reside in their own village Tajoo Khoso. It is further alleged in the F.I.R.

3. That Bahram Khan nephew of the complainant is residing with him. The complainant has further alleged in the F.I.R. That they own their land in Deh Tajoo Khoso and the said land is being irrigated from Shah Wah; but Bakhat Ali Jakhrani and other tribe persons used to demand "Bhatta" for use of irrigation water. Previously Bakhat Ali and Gadal closed the flowing of water due to refusal of "Bhatta". On the day of incident, the complainant, his nephew Bahram, his cousin Mir Muhammad .And Baggan went to open the gate-of canal, when they reached at Hamza Wah, where they saw Bakhat Ali, Gadal, Meero and one unidentified accused were standing at there. All accused were armed with K.Ks. From them, accused Gadal challenged to the complainant party and said that they were not paying "Bhatta", therefore, they will not allow opening the gate of canal. But the complainant insisted that they will open the gate for irrigation of their lands. On which accused Gadal instigated other accused not to spare them. On his instigation, accused Bakhat Ali fired from his K.K. Which hit at Meer Muhammad who fell ,down after raising cries. Accused Meero and unidentified accused also fired at the complainant party, but they saved their lives by taking shelter of canal. Thereafter, they ran away towards northern side, while raising slogans. After departure of accused persons, complainant saw that Meer Muhammad succumbed to his injuries and died at the spot. After leaving the P. Ws. Over the dead body of deceased, the complainant went to police station where he lodged the report against the above named accused persons.

4. ' I have heard Mr. Ali Ahmed Khan, learned Advocate for the applicant and Mr. Nisar Ahmed G. Abro, learned State Counsel.

5. ' Learned counsel appearing on behalf of the applicant has contended that no any specific role of causing injury is attributed to the applicant/accused, therefore, the case against the applicant requires for further enquiry. He had also contended that no any recovery has been effected. He also contended that the applicant/accused has been falsely implicated due to enmity. Learned counsel further added that from 1998 to 6-11-2006, when the applicant was arrested, he was confined in jail at Balochistan, but on the query of the Court he could not produce any documentary evidence from the jail authorities in respect of applicant's confinement in any case in Province of Balochistan. On confronting this situation, the learned Advocate for the applicant states that even the period of his absconsion be treated as fugitive from the law, even then on the ground of hardship and on the role of instigation only he is entitled for the grant of bail. Learned counsel relied on the case of Moula Bux v. The State 2005 YLR 190 and case of Mukhtar v. The State 2008 YLR 1753.

6. ' Mr. Nisar Ahmed G. Abro, learned State Counsel, conceded the IA grant of bail and raised no objection.

7. ' I have considered the arguments advanced by learned counsel for the parties and perused the material available on the record.

8. ' From the perusal of record it reveals that R&Ps of the present case along with other cases were burnt by a mob after assassination of Muhtarama Benazir Bhutto on 27-12-2007. The record further reveals that necessary permission for reconstruction of files was sought, which has been granted vide order, dated 8-2-2008. In view of said order the file of present case has been reconstructed and duplicate police papers have also been called. According to F.I.R. Applicant/accused Gadal instigated co-accused and on his instigation co-accused Bakhat Ali had committed murder of deceased, therefore, it is yet to be ascertained whether the applicant has shared his common intention and whether section 34, P.P.C. Is attracted in this case.

9. ' In view of the above, in my humble opinion learned counsel for the applicant has succeeded in making out a case for grant of bail. I, therefore, admit the accused on bail subject to furnishing solvent surety in the sum of Rs,3,00,000 and P.R. Bond in the like amount to the satisfaction of the learned trial Court.