ALLAH WASSAYO vs THE STATE

ORDER

1. ' The applicant Allah Wassayo is facing trial in Sessions Case No,154 of 2000 in the Court of IInd Additional Sessions Judge, Ghotki in offences under sections 302, 324, 147, 148, 149, 114, 504, P.P.C. In Crime No,51 of 2000, registered at Police Station Khanpur Mahar.

2. ' After due investigation of the case, the charge-sheet was submitted in the Court having jurisdiction, where the bail plea was filed on behalf of the applicant/accused, but the same was dismissed on 21-12-2000 by the learned IInd Additional Sessions Judge, Ghotki. Whereas the bail concession was extended to co-accused Jaffar, Jani and Adit on the ground that they have not caused injuries to the deceased at the time of incident, but they were armed with hatchet at the scene of incident while the bail plea of the present applicant/accused was dismissed on the ground that he was armed with hatchet and he was instigating the other accused not to spare them and on his instigation, Rawat inflicted hatchet blows to Badal, Mitho inflicted hatchet blows to Dildar, Sadique inflicted Lathi blows to Salik to which Rano and Kamal intervened then accused left the spot. The complainant Rahim Mahar lodged his F.I.R. At Police Station Khanpur Mahar on 14-8- 2000.

3. ' The facts, as enumerated in the F.I.R., are reproduced hereinbelow:-- ' "It is complaint that about one year back there was fight with Rawat Mahar and others on account of Sale of Land. In that tight Jaffar Mahar and others sustained injuries, later on Faisal was held by Molvi Asadullah Fakur, but Aadat and others did not accept that Faisla and were announcing that we will take revenge. Today at morning I alongwith my father Salik, brother .Badal and Dildar purchased 4 cows from cattle market of Khanpur Mahar and were proceeding towards our house, at about 1-00 p.m. When we reached near that Petrol Pump of Gul Hassan Fakir Deh Rani Har then we saw accused (1) Rawat (2) Mitho (3) Ali all three sons of Allah Wassyo Mahar resident of near Shahpur with hatchets, (4) Kouro son of Allah Wassayo (5) Jaffar son of Baroch (6) Jangi son of Jaffar, (7) Jani son of Jaffar, (8) Aadat son of Bhalo, (9) Sadiq son of Bhalo (10) Allah Wassayo son of Baroch, (11) Baroch son of Bhaloo all Mahar by caste resident of Near Shahpur with lathis were standing. Accused Allah Wassayo abused and announced that today we will not spare you. After saying so he instigated other accused to kill Salik and others, On his instigation accused Rawat with intention to kill caused hatched blows to Badal which hit Badal at his head and near the right eye and other part of body, who fell on ground and accused Mitho with intention to kill caused hatchet blow to Dildar which hit Dildar at his near left elbow. Accused Sadiq with intention to kill caused lathi blows to my father Salik, which hit my father at his left side of abdomen and other parts of body. We raised cries thereupon Rano son of Dahar Mahar, (2) Kamal son of Usman Mahar, who were sitting at petrol pump and other came running there by raising Hakals. On seeing them all accused alongwith hatchets and lathis ran away towards South. Thereafter, we brought the injured at police station and make complaint that above accused with their common intention on account of above enmity caused hatchet and lathi blows to my father Salik and brother Badal and Dildar, with intention to kill and caused them injured. I am complainant pray for redress.

4. ' Note: Complaint of complainant readover to him who admitted it correct and gave his L.T.I.

5. LTI Complainant"

6. ' It is contended by the learned counsel for the applicant that the complainant party has malafidely implicated all the male members including the present applicant, who is an aged person alongwith his four sons, in order to quench the thrust of revenge over agricultural land. It is further urged that no active part has been assigned to the present applicant/accused and only allegation of instigation (proverbal) and the present applicant/accused has not caused any injury to the deceased although he was shown to be armed with hatchet. It is further contended by the learned counsel that the learned trial Court has granted bail to the three co-accused, namely, Jaffar, Jani and Adit and the case of the present applicant/accused is identical. It is further urged by the learned counsel that accused is in custody and nine months have been passed and there is no development in the trial Court with regard to the proceeding of the applicant's case. In support of his contention, learned counsel for the applicant has referred to the following cases:--

(1) 1993 SCM R 1992 (Amanat Ali v. The State);

(2) 1996 SCM R 1654 (Muhammad Sadiq and others v. The State);

(3) 1998 SCM R 454 (Muhammad v. The State);

(4) 1998 PCr.LJ 179 (Haji Muzzaffar Khan v. The State);

(5) 1997 PCr.LJ 143 (Muhammad Siddique v. The State);

(6) 2000 M LD 1269 (Muhammad Nazir v. The State) and

(1) 1993 SCM R 1992.

7. ' In this case, it has been held that: "According to F.I.R. Only 'Lalkara' had been attributed to the accused. Petition for leave to appeal was converted into appeal accordingly and the accused was enlarged on bail."

(2) 1996 SCM R 1654 ' In this case, it was held that: "Although accused were armed with a pistol and rifle, yet they did not cause any injury to the complainant party. Allegation of Lalkara against the accused was proverbial. Accused were admitted to bail in circumstances."

(3) 1998 SCM R 454 ' In this case, it has been held that "Accused had allegedly made an ineffective firing and no injury was attributed to him during the occurrence. Case against accused, therefore, needed further inquiry. Petition for leave to appeal was converted into appeal and accused was admitted to bail accordingly."

(4) 1998 PCr.LJ 179 ' In this case, it was held that: "Question whether making of alleged signal by the accused to principal accused for firing at the deceased amounted to giving a command, could be determined on the basis of evidence. Allegations against other accused being those of abetment and conspiracy, their involvement in the episode could also be determined to the trial of the case. Case of accused being one of further inquiry they were allowed bail accordingly."

(5) 1997 PCr.LJ 143 ' In this case, it has been held that: "Accused was only alleged to have exhorted his co-accused to open fire which allegation was commonly referred to as "Proverbial Lalkara" and in such cases bail was normally granted. Reasonable grounds, prima facie, did not seem to exist that the accused was guilty of an offence punishable with death or imprisonment for life or imprisonment for ten years, Case against accused being one of further inquiry as contemplated by section 497(2), Cr.P.C., he was entitled to the grant of bail. Accused was admitted to bail accordingly."

(6) 2000 M LD 1269 ' In this case, it was held that: "Being the father of three co-accused was no ground to disentitle the accused to bail. Lalkara attributed to accused was not of commanding nature. Accused had neither practically participated in the occurrence, nor any overt act was ascribed to him.

8. Involvement of accused in the matter, therefore, was a question of further inquiry. Bail was allowed to accused in circumstances."

9. ' Learned State counsel has opposed the bail prayer and states that the applicant/accused was armed with hatchet and raised proverbial lalkara to the co-accused and on this lalkara the accused person caused injuries to the deceased.

10. ' I have heard the arguments advanced by both the learned counsel and have also perused the material available on record.

11. ' Admittedly, the applicant/accused has raised Lalkara to the other co-accused, who are sons of the present applicant/ accused, but the present applicant/accused, who was armed with hatchet did not practically participate in the occurrence. Hence, his involvement is a question of further inquiry. From the perusal of the record, it appears that allegation of raising Lalkara while standing at the place of Wardat and armed with hatchet is to be resolved by the trial Court while recording evidence. Furthermore, there are no reasonable grounds to believe that the applicant/accused has committed the said offence, as alleged in the F.I.R. And there are sufficient grounds to make the involvement of the present applicant/accused doubtful.

12. ' In view of the dicta laid down by the Hon'ble apex Court as well as by the High Court of other Provinces and keeping the aforesaid aspects of the matter as urged by the learned counsel for the applicant, I am of the view that the applicant/accused is entitled for the concession of bail, as provided under section 497(2), Cr.P.C.

13. 'Resultantly, the bail is granted to the applicant/accused in the sum of Rs,2,00,000 (Rupees two lacs only) with one surety in the like amount to the satisfaction of the trial Court.