SHAFQATULLAH KAZI Versus KARIM BUX

1. The prosecution story as narrated by complainant Shafqatullah in the first information report lodged on 15‑8‑1998, is that on the day of incident he his brother Imdadullah and Waheed Murad were coming on motor‑cycle to Mirpur, Mathelo. When they reached at Mako Link Road at Katcha Bridge at about 5‑45 p.m., they saw that accused Gulab armed with gun, Karim Bux armed with hatchet, Allah Waryo, Miandad and Muhammad Yousif armed with lathis emerged all of sudden. Gulab shouted and asked them to stop motor‑cycle. After that, accused Gulab fired in air from his gun and Karim Bux caused hatchet blow on the ear of complainant which hit him on his left ear which was completely chopped. Allah Warayo caused lathi blow which hit motor‑cycle whereas Miandad and Muhammad Yousif caused lathi blows to complainant. They baseached them in the name of Al‑mighty Allah and Prophet (peace be upon him). Thereafter, they decamped from the scene of offence. The complainant then proceeded to Police Station and lodged first information report at 7.00 p.m. on the same day. The complainant has also stated in the first information report that he was carrying the cash of Rs.27,500, Rado watch, golden locket and a cheque which had fallen on the ground.

2. The police after registration of F.I.R. took up investigation and examined witnesses namely Wali Muhammad, Gul Hassan, Noor Hassan, Ghous Bux and Ali Murad on 26‑8‑1998, after eleven days of the incident. Their names were not mentioned in F.I.R. They allegedly stated before the police that they were the eye‑witnesses of the incident and the actual culprits were not Raees Gulab, Karim Bux, Miandad and Muhammad Yousif but they disclosed that the culprits of this incident were Allahwarrayo, Aijaz Ahmed, Zahid Hussain, Allah Bachayo and Shafqatullah. The police on the basis of said statements placed the names of accused Gulab Karim Bux, Miandad and Muhammad Yousif in column No.II of the challan and thereby let them off. Instead of them the police submitted challan against aforesaid newly‑added five accused. The complainant moved an application in the Court of learned 1Vth Additional Sessions Judge Mirpur Mathelo under section 193 read with section 173, Cr.P.C. praying therein that the real culprits who were nominated in the first information report has been let off by the police and same other innocent persons have been substituted by them in order to spoil the case of prosecution. This application was ultimately granted on 1‑5‑1999 and four accused let off earlier by the police were joined as accused, and on the same day they were remanded to custody by the trial Court. Subsequently bail application was moved in the trial Court for accused Karim Bux, Races Miandad, Raees Gulab and Muhammad Yousif. The accused were released on bail by the trial Court vide its order, dated 4‑5‑1999.

3. The complainant being dissatisfied by the said bail order has moved this Court for cancellation of bail.

4. Mr. Habibullah Shaikh, learned counsel for the complainant has stated that incident of this case has occurred at broad daylight on 15‑8‑1998. The report of the case was registered at 7.00 p.m. on the same day. The names of accused have been nominated in the F.I.R. and the specific party is assigned to them. Accused Karim Bux is said to be armed with hatchet and he caused hatchet injury to complainant which hit on left ear of the complainant and the same was served. Accused Miandad and Yousif caused lathis blows to complainant whereas Races Gulab fired in air. It is stated that the police in conspiracy with accused introduced some strangers namely Wali, Muhammad, Gul Hassan, Noor Hassan, Ghous Bux and Ali Murad as eye‑witnesses of the incident and recorded their 161, Cr.P.C. statements after eleven days of the incident. On 29‑8‑1998 their 164, Cr.P.C. statements were also recorded wherein all the aforesaid witnesses have stated that the accused nominated in the F.I.R. were not the actual culprits but their youngsters have attacked the complainant party and the police on the basis of these statements let off all the accused whose names were figuring in the first information and joined other five accused in the investigation. Consequently the police submitted challan against those persons and let off the other four. 1t is submitted that police had unnecessarily favoured the accused party. The complainant had sent such telegrams to the higher authorities which are placed on record. It is argued that the newly‑added accused have been introduced by the police in connivance with accused who were earlier nominated in the first information report in order to spoil the prosecution case: The case of complainant gets support from two eye‑witnesses namely Imdadullah and Waheed Murad. It is argued that even otherwise the evidence of injured witness if found to be reliable it could carry conviction. The offence under sections 324 and 336, P.P.C. is covered by prohibitory clause. The ocular evidence is fully supported by the medical evidence. The injures sustained by the complainant fall under the aforesaid sections. The learned counsel for complainant has pressed this application for cancellation of bail of accused Karim Bux only who has caused serious injury to the complainant on the vital part of the body, whereby his left ear has been chopped. He has not pressed the cancellation of the remaining accused. Reliance is placed to the case of Haji Inayatul Haq v. Saeed Muhammad Khan and another (1988 SCMR 1743).

5. Mr. Saifuddin Shah, learned counsel for the accused has argued that the case of present accused involves two versions one by the complainant and the other one by the aforesaid five witnesses. It is argued that plea of alibi taken by the accused party is to be considered at the bail stage and benefit of it is be extended to the accused. The youngster of the accused committed the alleged incident but the names of their elders were specified in the F.I.R. by the complainant in order to involve them in criminal case. It is yet to be seen as to which of the said accused was responsible for causing injuries to the complainant. The learned counsel submits that grounds for grant of bail and the rejection of bail are altogether different and the case of present accused requires further enquiry as envisaged by section 497(2), Cr.P.C. The accused have rightly been granted bail by the trial Court and the said order needs no interference. The reliance is placed upon the cases reported as Muhammad Jameel v. Shafqat Bari and 4 others (1996 SCMR 1562) and Mazhar Mehmood v. Basit and another (1997 SCMR 915).

6. Mr. Sher Muhammad Shar, learned A.A.‑G: has argued that case of accused Karim Bux is distinguishable from other accused as the grievous injury is attributed to him and the offence' falls under sections 336 and 324, P.P.C. which is covered by prohibitory clause. The said accused was not entitled to the grant of bail.

7. The perusal of the F.I.R. shows that this incident had taken place at 5‑45 p.m. and the report was promptly lodged on the same day at 7.00 p.m. The names of accused were nominated in the first information report with specific role. The role assigned to accused Karim Bux is that he caused hatchet injury on the ear of complainant whereby his left ear was chopped, which was later on taken to Police Station and was produced before the police. The names of eye‑witnesses Imdadullah and Waheed Murad are mentioned in the first information report. The record reveals that after eleven days of the incident the police introduced some strangers in investigation and made them witnesses. On the basis of their evidence, the police changed the whole story and replaced the original accused nominated in the F.I.R. The police submitted challan of other five persons who are said to be youngster of real accused. The application was moved before trial Court for joining them as accused which was ultimately allowed and they were joined as accused. The said accused were later on released on bail by trial Court on the ground that witnesses had stated hat they were not real culprits of the incident. The accused were granted bail on 4‑5‑1999, therefore, it would not be proper to cancel the bail of all the accused but at least accused Karim Bux who was armed with hatchet and has caused hatchet blow with its sharp side on the vital part of the body of the complainant whereby the injured lost his ear is not entitled to enjoy the concession of bail, merely because the police placed him in column No.II. The case under sections 336 and 324, P.P.C. falls under prohibitory clause. Specific part has been assigned to this man. He has been joined in trial and said order is reported to have been up held by this Court in revision application. At this stage, at least there was ample evidence available on record to believe that Karim Bux was guilty of the offence unde~ sections stated above and that his case was not of further enquiry. Reliance can be had to the cases of Haji Inayat‑ul‑Hzaq v. Said Muhammad Khan and another (1988 SCMR 1743), Abdul Sattar and another v. The State (1987 SCMR 1424) and Mst. Resham Jan v. Abdur Rehman (1991 SCMR 1849).

8. The case law cited by the learned counsel for the defence has no bearings and relevance to the facts and circumstances of the instance case and the facts of the said cases are quite distinguishable.

9. For these reasons the application for cancellation of bail of accused Miandad, Muhammad Yousif, Raees Gulab and Allah Warayo is hereby dismissed whereas so far as accused Karim Bux is concerned, his bail is e cancelled and is remanded to custody.

10. N.H.Q./S‑68/K ??????????????????????????????????????????????????????????????????????????????????? Bail cancelled.