HABIBULLAH alias HABAN vs THE STATE

ORDER

1. ' MS. RUKHSANA AHMED, J.---Applicant Habibullah alias Haban seeks bail in Crime No, 338 of 2008 registered at Police Station, Dadu for offences under sections 324, 405, 337-F(ii), 147, 148 and 149, P.

2. P. C .

3. ' As per F.I.R., complainant Gul Hassan alleged that there is murderous enmity between him and Shahan Kaburo. On 23-7-2008 when complainant along with his nephews Din Muhammad and Wazir and his relative Mazhar were present in the otaq of their nekmard Shahan Kaburo for discussion over faisla of brothery, the present applicant/ accused Habibullah alias Haban, Shahan, Anwar, Imam Ali, Azam and Niaz duly armed with deadly weapons came there and started abusing that Wazir has fought with their persons, therefore, they will not be spared to them, saying so accused Shahan abused Wazir, nephew of the complainant and accused (applicant) Habibullah alias Habban in order to kill Wazir, made fire from his repeater which hit him on his knee of left leg, while accused Anwar caused butt blow of gun and Azam caused hatchet handle blow to Imam Ali and Niaz caused danda blow to Wazir on his back and other parts of the body. Thereafter complainant took Wazir to Civil Hospital, Dadu for treatment and leaving him there went to Police Station and lodged such report.

4. ' Prior to this bail application, another bail application was filed before the trial Court, which was rejected on 29-3-2010. On perusal of the same, the learned Judge had held that the injury sustained by injured Wazir was specifically attributed to applicant Habibullah alias Habban, while the case of co-accused Azam and Imam Ali, who are on pre-arrest bail, is different from the case of present applicant and had further given of mention that the victim injured Wazir appeared before the Court in person and vehemently opposed the grant of bail, as according to him, due to the injury sustained by him at the hands of applicant/accused Habibullah he became disable. The contents of F.I.R. Are supported by the medical evidence and, as such at that stage bail application was not considered and the same was dismissed.

5. ' Today, learned counsel for the applicant has been fortified in his arguments by citing case-law of Saleem Khan, v. State (1999 PCr.LJ 140), wherein the facts of the case are on similar nature and even the name of the accused appeared in F.I.R. And specific role of causing injuries to injured had been assigned to him as well as all accused persons were allegedly to be armed with pistols but none of them had repeated their fires, while the complainant and his brother were completely at their mercy. It has been further held that prima facie there appeared no intention on the part of applicant/accused to cause death or Qatl-e-amd of either complainant or his brother. The injuries on the person of injured were on non-vital part of the body, which also prima facie showed lack of intention of the applicant/accused to cause Qatl-eamd because the question of applicability of section 324, P.P.C. As mentioned in F.I.R. Is till to be determined at trial after examination of complainant and prosecution witness. No motive has been assigned by the complainant for the alleged attack on him and others. It has been also observed that the facts were suppressed by the complainant in the F.I.R. And applicability of section 324, P.P.C. Would be determined at the time of trial and the alleged offence against accused at the most would fell under section 337-F(ii) in the present case, which did not fall under prohibitory clause of section 497, Cr.P.C. The learned A.P.G.

6. Appearing for the State has opposed the bail application and has also drawn attention of this Court that the accused had not surrendered but had arrested and has by causing fire-arm injury disabled the person. Further, he has contended that the medical certificate supports the version of the complainant, though the submissions made by the learned APG, not being discarded by this Court, but the case-law cited by the learned counsel for the applicant supports his arguments and I am of the opinion that present application merits consideration and case of applicant requires further inquiry and, as such, his bail application is allowed and bail is granted to the applicant in the sum of Rs, 200,000 (rupees two hundred thousand) with PR bond in the like amount, to the satisfaction of trial Court.

7. ' The observations made hereinabove are tentative in nature and .Will not influence on the merits of the case.

8. ' These are the reasons of my short order dated 4-6-2010, whereby the bail application was allowed.