NABI BUX Versus State
ORDER
FAISAL KAMAL ALAM,-J. ---Through this bail application, applicant Nabi Bux Mahar has sought post arrest bail in Crime No. 06 of 2018 in respect of FIR registered at Police Station Bachal Bhayo, for offences under sections 302, 452, 114, 147, 148, 149, 337-A(i), F(i), P.P.C.
2. The brief facts of the prosecution case are that complainant Manzoor Hussain lodged FIR at Police Station Bachal Bhayo on 07.9.2018 at 1800 hours alleging therein that there is dispute between above named complainant and Ayaz and Nabi Bux Mahar over a plot. On 25.8.2018 complainant along with his brother Barkat Ali, Mir Hassan, Ali Hassan, Maqsood was present in the house. At about 7-00 a.m. they saw accused Ayaz, Nabi Bux armed with lathies, Imtiaz with hatchet, Aijaz with lathi, Sajid with gun, Naveed with hatchet, Sajjad with hatchet, Amir Bux with gun, Hadi Bux with hatchet, came at the complainant's house. On their arrival accused Hadi Bux instigated other accused. The accused Nabi Bux caused lathi (stick) blow on the person of Barkat Ali on right leg, accused Ayaz caused lathi blow on the person of Barkat Ali on left arm, who fell down on the ground; accused Amir Bux caused butt blow of gun to Ali Hassan on his face and teeth. Accused Naveed caused hatchet blow to Mir Hassan on his head, accused Sajjad hit Maqsood Ahmed on his left leg with blunt side of hatchet, accused Imtiaz caused injury with blunt side hatchet to complainant over his left eye, thereafter all accused caused kicks and fists blows to them, abused them and made aerial firing and went away. The complainant arranged the conveyance, took the injured to Police Station, obtained letter for treatment, and thereafter went to Civil Hospital Lakhi for treatment. On 06.9.2018 brother of complainant namely Barkat Ali became seriously ill, he was taken to Sukkur Hospital but on the way his brother succumbed to his injuries. After post mortem and burial ceremony, complainant appeared at P.S and lodged the FIR of the above unfortunate incident.
3. After registration of FIR the investigation followed and the applicant/accused was arrested and case sent to trial. The bail plea moved on behalf of the applicant/accused was declined by the learned Trial Court vide order dated 05.11.2018.
4. Learned counsel for the applicant/accused has argued that FIR was lodged after a delay of two weeks, wherein, a limited role is assigned to the accused Nabi Bux is that he caused lathi blow on the person of deceased Barkat Ali on upper part of right leg. Whereas another accused Ayaz caused lathi blow to the above named deceased on his left arm. He further argued that challan has been submitted under section 316, P.P.C. whereas the postmortem report dated 13.9.2018 available in the record states that one of the causes of death of deceased was his uncontrolled sugar. The postmortem report also shows that time between death and postmortem is 13 to 15 days. Learned counsel further stated that all other accused have been granted bail by the learned Trial Court, hence on the ground of rule of consistency the present accused may be granted bail. Other argument is that it is a case of counter version as accused side also lodged FIR against the complainant and his other accomplices and the latter (complainant) were granted bail by the Trial Court in Crime No.08 of 2018 with regard to the same incident. He has relied upon the case reported as Naimat Khan v. The State (2010 PCr.LJ 964 [Karachi]).
5. Mr. Mashkoor Hussain Unar, Advocate, appearing for complainant has opposed the bail, primarily, on the ground that just because there is a counter version, that is, a counter FIR was lodged by the accused party against the complainant, is no ground for grant of bail. He has relied upon the decision of the Honourable Supreme Court reported in 1983 SCMR page-278 (Imranuddin v. The State) and that of this Court reported in 2019 PCr.LJ Note 24.
6. The learned Deputy Prosecutor General Mr. Muhammad Noonari has also opposed the grant of bail, because a specific role has been assigned to the present accused as mentioned in the FIR. It is further argued by D.P.G. that the second FIR, in Crime No.8 of 2018, which has been lodged by the present accused side against the Complainant side was after a delay of more than one month.
7. Arguments heard and record perused.
8. At this bail stage, a tentative assessment is to be made, primarily, on the basis of record available. The incident is of 25.08.2018, in which one Barkat Ali from the Complainant side has lost his life. However, the first FIR, in Crime No.06 of 2018, was lodged by the present Complainant side on 07.09.2018, that is, after delay of 16 days, without giving any plausible explanation for such delay, except that the complainant was busy in attending their above named injured relative Barkat Ali, who later passed away. The specific role attributed to the present accused Nabi Bux, as mentioned in the FIR, is that he struck a lathi (stick) blow on the upper right part of leg of deceased (Barkat Ali), whereas, the second accused Ayaz hit Barkat Ali on his left arm with lathi. The deceased after receiving injuries was given medical treatment but died after 13 days. The postmortem is also available in record, in which, in column-7, one of the causes of death is mentioned as the infected wound and uncontrollable sugar, that has triggered metabolic derangement. In column-8, the probable time between injury and death is mentioned as 13 to 15 days. The investigation has been completed and the challan has been submitted in which offence has been made out under section 316 of P.P.C., related to punishment for committing Qatl-Shibh-i-amd.
9. From the present set of facts, it appears that role assigned to the present accused is not that he killed the deceased by striking at his vital organs of the body, but the accused hit on the right leg of deceased. Crux of a reported judgment in the case of Muhammad Shahzad v. The State (2009 MLD page-348), is that had the accused intended to kill the deceased, then he would have struck at the vital part of the body of the deceased. Consequently, in the reported case, the bail was granted to the accused.
10. The post-mortem report for limited purpose also can be considered at this bail stage. In this regard, reported decision of the honourable Supreme Court in Awal Khan and 7 others v. The State through A.G.K.P.K. (2017 SCMR page-538), is relevant,
11. As mentioned above, in the postmortem report one of the causes of death is also attributed to the illness of the deceased Barkat Ali.
12. The FIR in the present case was lodged after delay of 16 days approximately without assigning any plausible reason. The challan has been submitted in the case and at this stage accused is not required for any further investigation. The reported decision of this Court in the case of Nazaro alias Nazar Muhammad and 7 others v. The State (2003 PCr.LJ 414) has almost identical facts wherein the accused/applicants were granted bail, inter alia, on the consideration of facts that they caused lathi and hatchet blows on the complainant party and there was a counter FIR also against the latter. The reported decision has been based on a well known decision of Hon'ble Supreme Court handed down in the case of Shoaib Muhammad Butt v. Iftikhar ul Haq and 3 others (1996 SCMR 1845). In another decision of Hon'ble Supreme Court Faqir Hussain alias Bali v. The State and others (2014 SCMR 1502), the Hon'ble apex Court, after considering the contents of report submitted under section 173, Cr.P.C., which by and large does not correspond to the allegations mentioned in the FIR, extended the benefit of bail to the accused/petitioner, while observing that case of further enquiry into the guilt of accused/petitioner, for connecting him with the offence complained of, has been made out.
13. In view of above discussion, the rule laid down in the case law relied upon by the complainant side is not attracted to the facts of present case, which are covered by the principle laid down in a chain of case law, some of which are discussed hereinabove and particularly the reported decision of this Court in the case of Naimat Khan (ibid) and another decision in the case of Abdul Raheem v. The State (2013 YLR 2534); wherein, bail was granted, inter alia, as there were two FIRs of same incident, and it was yet to be determined that who is the aggressor and who is the actual victim, hence, case of further enquiry was made out. Undisputedly there is a counter FIR against the complainant party with regard to same incident and the latter has already been extended the benefit of bail.
14. Accordingly, this application is granted and accused is enlarged on bail subject to furnishing solvent surety in the sum of Rs.200,000/= (Rupees Two Hundred Thousand only) with equal amount of P.R. bond to the satisfaction of the Trial Court.
15. However, if the applicant misuses the concession of bail, the Trial Court shall be at liberty to proceed against the applicant as per law. Needless to observe that the: observations made hereinabove are tentative in nature and the Trial Court shall not be influenced by any of such observation and will decide the case strictly on merits and on the basis of evidence.
The bail application stands disposed of in the above terms.
ADN/N-51/Sindh Bail allowed.