MANZOOR Versus THE STATE

ORDER

1. This is an application for bail tiled by the applicants in connection with Crime No.38 of 1999 Police Station Qubo Saeed Khan for offences under sections 302, 324, 114, 147, 148 and 149, P.P.C.

2. Briefly the facts of the case are that on 23‑7‑1999 an incident occurred on the lands of the complainant Muhammad Alam son of Ahmed Khan Magsi village Gullan Sakhani Shahdadkot. It was claimed by the complainant that two years back he had purchased agricultural land from Abdul Ghafoor Jesrani which is situated in Deb Samander measuring about 11 Jerabs. Khuda Bux Brohi and his sons Hazoor Bux and Rasool Bux are his heirs. Akbar alias Bhutto Sakhani and others were annoyed with the complainant when he purchased the said land. In fact he was told in so many words that the purchase of the land was not proper and the accused threatened that they will take revenge. Complaint was also lodged with the nekmard by the complainant. In the morning of the 23rd June, 1999 the complainant alongwith son Sobo nephew Akbar, Mir Beg, Muhammad Nawaz, Abdul Karim all Magsi by caste and Huzoor Bux, Rasool Bux and Khuda Bux all Brohi by caste proces0ed from the village to their lands on their tractor. At about 11‑30 hours accused Akbar, Abbas, Sozal all three sons of Mehar and Mehar, Qamar‑ud‑Din, all armed with guns and Manzoor, Pehlwan, Soomar, Chhutal, Amir Jan, all armed with hatchets. Sikander Razi, Abdul Rehman, all armed with Lathis came there. Akbar gave Hakal and asked to stop ploughing the land. Sobo stopped the tractor and came down and Akbar told them that it was their land. Accused Akbar alias Bhutto directly fired at Akbar alias Yaqoob, accused Mehar directly fired at Sobo, accused Abbas directly fired at Huzoor Bux Brohi and accused Sozal directly fired at Rasool Bux Brohi. On receiving shots, all fell down. Abdul Karim requested the accused persons not to kill other persons and spare them but accused Qamar‑ud‑Din fired directly at Abdul Karim. Accused Akbar alias Bhutto instigated others on which those persons who were armed with hatches and Lathis started inflicting injuries. The complainant was hurt alongwith Mir Beg and Muhammad Nawaz.

3. Four persons died and three persons received injuries. The F.I.R. was registered with the concerned police station and case proceeded. The accused were arrested. A bail application was moved before the trial Court who rejected the application of the present applicants. The applicants have ‑roved this Court for the grant of bail.

4. It is the contention of applicants that they are falsely implicated in this case. The F.I.R. from very face of it seems to be false and fabricated and all the P.Ws. are interrelated. The hostility over the land is acknowledged. Against the present applicants there are general allegations of inflicting hatchet injuries. They have further contended that as per the Medical Officer's Report the injuries are Shujah‑e‑Madiah, Shuja‑e‑Ghayr, Jaifa Damiah, Jaifah Hashmaih and Shujah‑e- Madiah Shujah‑e‑Khafifah. These injuries do not fall under the prohibitory clause of section 497, Cr.P.C. It is the contention of the counsel that the co‑accused Abbas son of Mehar, Manzoor son of Mehar, Mehar son of Boomar, Chhuttal son of Soomar and Sikander son of Ali Gohar had all applied for bail under Bail Application No.767 of 2001. The bail was applied for on the ground of statutory delay. Whilst granting the bail I had observed that there were two factors that were to be considered in such type of cases. One that the delay should not be attributed to the accused. There should not be any intention to delay the matter. Two that bail can be refused if it is shown that the accused was dangerous, desperate and hardened criminal. In this application except for Manzoor all others were granted bail.

5. Learned counsel Mr. Habibullah Ghouri, appeared and insisted that he wants to represent the complainant. He wanted the matter to be adjourned., He did not have Vakalatnama with him and yet he wanted to oppose the application as according to him he was representing the interest of the complainant. He also drew my attention to the tact that one Criminal Miscellaneous Application No.47 of 2000 had been filed by Muhammad Alam son of Ahmad Khan Magsi against Chhuttal son of Soomar Khan, Sikandar son of Ali Gohar, Razi Khan son of Loung for cancellation of their bail under section 497(5) Cr.P.C. In that matter apparently the learned. 3rd Additional Sessions Judge, Larkana had granted bail. The counsel contended that the learned Single Judge of the High Court in his detailed order, dated 30th October, 2002 cancelled the bail of the accused and took them into custody. They were remanded back to jail. The counsel wanted me to look into this detailed order as according to him, on merits, the applicants had got no case. It was his contention that the detailed order would adequately show that the learned Single Judge had gone through at length the factual and legal position and after giving due consideration, had rightly allowed cancellation of the bail.

6. The application for cancellation of bail was moved in respect of those accused i.e. Chhuttal son of Soomar Khan,

2. Sikander son of Ali Gohar and 3. Razi son of Loung. Out of these. three persons Chhuttal was supposed to be armed with hatchet and Sikander and Razi were armed With Lathis. This is clear from the bare reading of the F.I.R. On going through the F.I.R, other accused involved who had guns with them fired at several persons but at the fag end of the F.I.R. it is clear that accused Akbar alias Bhutto instigated other accused that do not spare the remaining persons on which accused persons who were armed with hatchets and Lathis inflicted hatchet and Lathi injuries on complainant Mir Beg and Muhammad Nawaz. It is adequately clear once again from the reading of the F.I.R. that five persons were armed with hatchets and three persons were armed with Lathis. Out of the total eight persons only three persons had got bail from the trial Court and whose bail had been cancelled in Criminal Miscellaneous Bail No.47 of 2000. In my humble view, it is not Clear as to who attacked whom with Lathi and hatchet. I cannot comment oil the views of my learned brother while passing the order as I am not sitting as an appellate Judge, however, observations of my brother would have persuasive value only in deciding this case on merits.

7. By my order dated 13‑11‑2001, I had granted bail to all the applicants except Manzoor on the ground, of statutory Bail. He was directed to make an application to the trial Court on merits.

8. Learned counsel appearing on behalf of the State has relied on several case laws in support of his contention that the two applicants Manzoor son of Mehar and Pehlwan son of Chhuttal should be granted bail. Both Manzoor and Pehlwan would fall into those categories of accused who according to the F.I.R. were armed with hatchets. Once again, I am relying on the statement of the complainant which clearly states that after giving hakal all those persons who were armed with hatchets and Lathies started inflicting blows on the complainant, Mir Beg and Muhammad Nawaz.

9. When a bail application is made, either before the trial Court or before the appellate Court, the overall objective is to get the accused who is behind bars released on bail. In historical decisions of the Honourable Supreme Court, bail has been described as a right. It has been described as a grace. It has been described as a right to liberty. It has been described as removing a person from the confines of jail and putting him into the custody of the surety. By and large bail has been allowed unless the person is a hardened and desperate criminal. Bail has been refused where there is an apprehension that the accused shall temper with the witnesses. Bail has been refused where it has been felt that if the accused is released then he shall create more problems. Overall bail has been granted or refused depending on the facts of each case and the exercise of the discretion by the Judges in border line cases. The overall philosophy behind granting of bails has been to avoid the accused from being held behind bars for a long time, susceptible to the extraordinary conditions that prevail in our jails. The delay in disposal of cases‑and recording of evidence necessitates the filing of bail applications on merits and on technicalities. By and large these are either granted or refused. No settled principle, has been adopted even though a Full Bench of the Honourable Supreme Court whilst deciding a bail matter has laid down a dicta that even though facts tray differ basically the case has to be looked at without going into the in depth merits.

10. The cases were originally fought between the State representing the complainant and the accused. With tie advent of certain changes in the relevant law the complainant was given an opportunity to represent the interest of the deceased. The very fact that the complainant has registered the F.I.R. is adequate confirmation that if he is allowed an opportunity to contest the matter he shall do so at all stages. If that be the criteria for the decision of bail matters or for that matter appeals and revisions, then role of the prosecution/State would be diminished if not altogether reduced a mere representation. It has been seen that even where there is apparently a very good case for grant of bail, even then the stiff resistance put up by the complainant unnecessarily complicates otherwise simple matter.

11. It has also been argued that the role of the complainant has been recognized by the Legislature and that is why even in certain situations a provision is available in the relevant law for the complainant to take up cudgels. Be that as it may and even recognizing the role of a complainant as a positive contributor to the arrival at a fair and just solution his role is totally not bereft of bias. The original framers of the law ensured that criminal cases were pursued by the State and all acts of crime then became acts against the State and the prosecution was the State appointed attorney. Surely they could have left the State alone and allowed the complainant to be the plaintiff or a petitioner. The fact that they did not do so brings home a point that in no way can a case be proceeded with against the accused neutrally and without bias as long as the complainant keeps on participating in the proceedings.

12. The applicants who have moved this application for grant of bail have been mentioned in the F.I.R. Their naives appear but both of them were supposed to be armed with Hatchet. Whilst some of the accused who had guns have been shown to have fired at certain persons, the present applicant alongwith other persons who were also armed with Hatchet and Lathis have been shown as inflicting injuries on Mir Baig and Muhammad Nawaz. Both Mir Baig and Muhammad Nawaz according to the Medical report have received injuries which according not fall within the clause of section 497 as sentence that may be awarded to them if, are found guilty would be less than 10 years. The bail is accordingly granted each of them in the sum of Rs.50,000 (Rupees fifty thousand only) and P.R. Bond in the like amount to the satisfaction of the trial Court.

13. N.H.Q./M‑377/K Bail allowed.