HADI BUX and another vs THE STATE

ORDER

' KHA DIM HUSSAIN M. SHEIKH, J.---Through this application the applicants seek post-arrest bail in Crime No, 15 of 2008 of Police Station Naper Kot for offences under sections 17/2, 3 Offences Against Property (Enforcement of Hudood) Ordinance, 1979 sections 148, 149 P. P. C .

2. Briefly the facts of the case are that on 24-3-2008 at 1700 hours complainant Bashir Ahmed son of Wahid Bux Pahore appeared at the Police Station Naper Kot and lodged F.I.R. No,15 of 2008, under sections 17/2, 3 Offences Against Property (Enforcement of Hudood) Ordinance, 1979 to the effect that on 23-3-2008 the complainant his brother Nazar Muhammad and their friend Papu alias Muhammad Nawaz boarding in Qingqi Rickshaw were returning from Meta of Dolat Shall Pir from Karampur and at about 11-00 p.m. When they reached near Barri Wahi on a link road leading to Karampur they saw and identified on the light of Qingqi Rickshaw accused 1. Hadi Bux,

2. Khairo alias Khair Muhammad and 3. Hayat all three sons of Ahmadan 4. Abdul Rehman son of Dingo all by caste Jafferi, having 6,Lins in their hands and three unknown persons out of whom two were having lathies and one was having TT Pistol and they on the strength of weapons signalled the complainant party to stop Qingqi. In the meanwhile accused Khairo alias Khair Muhammad firstly took out cash of Rs,2000 from the front pocket of complainant. As the complainant's nephew Wazir Ali tried to speed away Qingqi accused Hadi Bux and Khairo alias Khair Muhammad fired their guns at the complainant party behind them, which hit the complainant's brother Nazar Muhammad and Wazir Ali on their backside. The complainant party then went to their village Karampur. After arranging conveyance the complainant party brought the injured at Civil Hospital Shikarpur for treatment. On 24-3-2008 at 1700 hours the complainant appeared at Police Station Naper Kot and lodged his F.I.R. After the investigation applicants were sent up to face their trial.

3. The bail application of the applicants moved before the learned Court of IInd Additional Sessions Judge, Shikarpur was dismissed vide order, dated 22-7-2008, hence this application.

4. It is contended by the learned counsel for the applicants that there is delay of 19 hours in lodging the F.I.R., without reasonable explanation, that at the time of incident, the injured persons namely Wazir Ali and Nazar Muhammad were in Civil Hospital Shikarpur at the distance of 35/40 k.m. From the place of incident, that the applicant Hadi Bux has been acquitted of the charge of offence under section 13-D Arms Ordinance. To substantiate his arguments, he places on record the copy of the judgment, dated 28-10-2008 whereby applicant Hadi Bux was acquitted of the charge under section 13(d) Arms Ordinance by the learned Court of Civil Judge and Judicial Magistrate Khanpur, that the applicant has been involved in this case falsely due to tribal dispute, that the injuries sustained by the injured persons namely Wazir Ali and Nazar Muhammad were constituting offences under sections 337-F(iii), 337F(i) which carry punishment up to 3 years and that the applicants are continuously in custody since 24-3-2008, but not a single witness has been examined by the prosecution till date, they, therefore, pray for grant of bail to the applicants. They placed their reliance on case of Noor Nabi and another v. The State 2007 YLR 2340 and Muhammad Youths and another v. The State 1995 PCr.LJ 711.

5. Mr. Altaf Hussain Surahio, learned Advocate for the complainant opposes the grant of bail to both the applicants stating that this is a road rubbery case, in which two persons sustained fire- arm injuries, gun was recovered from applicant Hadi Bux along with live cartridges and two empties from the place of wardat, therefore, the applicants are not entitled to grant of bail. He has relied upon an unreported case in Criminal Bail Application No,S-541 of 2000 re: Attaullah v. The State decided on 16-1-2001 by this Court.

6. Learned State counsel opposes the plea of bail of applicant Hadi Bux whereas he concedes for grant of bail to the applicant Muhammad Hayat.

7. I have carefully considered the arguments so advanced by the learned counsel for the parties and have gone through the police papers with the help of the learned State counsel. Admittedly there is delay of 19 hours in lodgment of F.I.R. And distance between the place of incident and the Police Station as is shown in the F.I.R. Is only 5/6 k.m., the incident is shown to have taken place on 23-3-2008 at 11 O'clock whereas provisional MLCs issued by actor for injured persons Wazir Ali and Nazar Muhammad show that y were examined by the doctor in Civil Hospital Shikarpur at 11 O'Clock and distance between the Civil Hospital and place of incident is stated to be 35/40 K.M. Which assertion of the learned counsel for the applicants is not controverted by the State counsel and counsel for the complainant, no recovery of robbed money has been effected from the applicants and that the applicant Hadi Bux from whom the gun and five cartridges were shown to have been recovered has been acquitted of the charge under section 13-D Arms Ordinance, learned State counsel states that no appeal has been filed against this acquittal of accused Hadi Bux and these both applicants have remained in custody for 14 months. The case relied upon by the learned counsel for the complainant is distinguishable from the facts of this case, the F.I.R. In that case was lodged within four and half hours of the incident and whereas in this case there is delay of 19 hours in lodgment of the F.I.R. And there are also other above distinct circumstances of this case.

8. In view of what has been discussed above, I am of the considered opinion that the applicants Hadi Bux and Muhammad Hayat have made out their case to the concession of bail, therefore, the Bail is granted to the applicants Hadi Bux and Muhammad Hayat in the sum of Rs,300,000 (Three Lacs Rupees only) each subject to their furnishing solvent surety and P.R. Bond in the like amount to the satisfaction of the learned trial Court. Bail application is allowed.

9. It need no reiteration that the observations of the Court while deciding bail application are always tentative in nature. After the evidence, learned trial Court shall decide the case on merits without being influenced by my observations herein above made for the purpose of disposal of this bail application.