SHAH MUHAMMAD Versus State

ORDER

1. SAYED PIR ALI SHAH, J .--- Applicant Shah Muhammad has applied for bail in crime No.57 of 2006 of Police Station, Hatri pending trial of Sessions Case No.240 of 2006 in the Court of Vth Additional Sessions Judge, Hyderabad for offences punishable under sections 302, 201 and 337 H(ii), P.P.C.

2. The dispute between the parties is allegedly over the water supply. Allegedly marriage of complainant's husband had taken place about 12 years back, he asked Shah Muhammad Brohi not to install water supply line on his plot, as he was raising boundary stones for construction of a hotel, upon which there was exchange of hot words.

3. Complainants husband went and informed his brother Abdul Karim. It is alleged that in the evening at about 6-30 p.m. in front of hotel of Amanullah Brohi, the present applicant Shah Muhammad along with other accused persons were present there. The allegation against the applicant/accused Shah Muhammad Brohi is that he caused hatchet blows on the head and neck of deceased Muhammad Murad Brohi and Khan Muhammad Brohi fired from his pistol which hit chest of Muhammad Murad, who fell down.

4. There were cross cases registered against each other. In counter case/crime No.58 of 2006 Abdul Karim, Illahi Bux, Muhammad Murad and Akram have been shown as absconders, while Peer Bux has been shown in column No.2 of the challan.

5. Learned counsel for the applicant submits that complainant Mst. Jamila is not the eye-witness, she was informed about the facts of the incident by Abdul Karim, who is also accused in F.I.R No.58 of 2006 and he is absconding. It is stated that his statement before the police was not recorded. The present applicant/accused was implicated by P.W. Abdul Karim, Abdul Aziz, Abdul Razzak and Ghous Bux while recording of their police statements, but latter they have been given up by the prosecution before the trial Court on 15-3-2007 when complainant was examined.

6. During the course of arguments, learned counsel produced Photostat copy of statement of D.D.A., who has mentioned that these three witnesses have been won over by the accused persons and, as such they were given up. It is stated that in counter case, the proceedings under section 512, Cr. P.C. have been initiated and as such/proclamation under sections 87 and 88, Cr.P.C. have been issued against them. Learned counsel has pressed this bail application on the ground of delay, old age of the accused Shah Muhammad, who is of 64 years age and on the ground of hardship as well. Learned counsel has placed reliance on the case of Shoaib Mehmood Butt v. Iftikhar-ul-Haq 1996 SCMR 1845, Ashfaq Ahmad Butt v. Muhammad Azam 2007 SCMR 1254, Ghulam Ali Malgani v. State 2004 YLR 870, Muhammad Sadiq v. State 2007 YLR 694, Muhammad Punhal v. State 2006 YLR 3164, Noor Ahmed and Irfan v. State 2006 PCr.LJ 1026, Liaquat Ali v. State 2005 PCr.LJ 1741 and Ghous Ali v. State 2008 PCr.LJ 647 in support of his contentions.

7. Mr. Anwar H. Ansari, learned State counsel argued that the complainant in her statement has stated that she was informed about this incident by her brother-in-law Abdul Karim. This Abdul Karim is the eye-witness of this case and accused in counter case and reportedly he has gone under ground, and as such it is not known when his attendance will be procured before the trial Court. Learned State counsel has fairly conceded to the grant of bail to accused Shah Muhammad against whom only complainants statement is available on record, which is hearsay piece of evidence. Learned counsel Miss: Parveen Chachar, for the complainant submits that complainant is no more in contact with her and she has not been provided any copies, therefore, she wants to withdraw her power.

8. Perusal of case papers shows that the only piece of evidence against the present applicant/accused Shah Muhammad is that in F.I.R specific role has been assigned to him that too by way of hearsay evidence of Abdul Karim who has not come forward before the learned trial Court for his statement. The above named witnesses who has earlier implicated the present applicant/accused in police statement and since these P.Ws. have been given up. The only star witness of the prosecution at the most will be Abdul Karim, who is underground, as he himself is involved in a murder case lodged by applicant. Obviously there are cross cases lodged by both the parties. From applicant's side Khan Muhammad has been murdered and from other side Muhammad Murad has been murdered. It is yet to be seen as to which of the party was aggressive. Present applicant is confined in jail since 9-6-2006, the day of incident. The learned trial Court has failed to examine official witnesses, as it has been stated that after 15-3-2007 not a single witness has been examined. In these peculiar circumstances, bail of accused Shah Muhammad needs further inquiry and, as such the same cannot be held as a sort of punishment. He is, therefore, granted bail subject to his furnishing solvent surety in the sum of Rs. two hundred thousand and PR bond in the like amount, to the satisfaction of learned trial Court.

9. The observations made hereinabove, if any, will not prejudice to the merits of the case, but trial Court is directed to take coercive measures for securing the attendance of the witness Abdul Karim, so also official witnesses and proceed with the case expeditiously.

10. NHQ/S-48/K Bail allowed.