ORDER SHEET

IN THE HIGH COURT OF SINDH,

CIRCUIT COURT, HYDERABAD.

                                        Cr.Bail.Appl.No.S-  110   of  2015

                                       Cr.Bail.Appl.No.S-  282   of  2015

DATE       ORDER WITH SIGNATURE OF JUDGE

25.11.2016.

Applicants present on interim pre-arrest bail.

Mr. Ayaz Hussain Tunio, Advocate for applicant in Cr.B.A.No.S-110/2015.

Mr. Rao Faisal Ali, Advocate for applicant in Cr.B.A.No.S-282/2015.

Mr. Mian Taj Muhammad Keerio, Advocate for complainant.

Mr. Shahid Shaikh, A.P.G. for the State.

                             =

SALAHUDDIN PANHWAR, J:  Through captioned bail applications, applicants Naeem Akhtar and Ghulam Muhammad seek pre-arrest bail in Crime No.28/2014 registered at Police Station Fort, Hyderabad u/s 302, 34 PPC.

2.       Precisely relevant facts are that on 17.07.2014 at 2330 hours at Railway Police Station post, Aqil Samoon and Amjad Ali Bhurgri were robbed on show of weapons by three unknown persons, who took away black berry mobile, one purse containing NIC and ATM Card from Amjad Ali Bhurgri. Thereafter, the accused, seeing two police constables on other side of road, tried for run. When they covered the distance of 15/20 meters, the police personnel’s aimed their weapons towards the victim, therefore, they raised hakals that the robbers are escaping and they are not muggers but they did not listen and one of them asked to another police constable for firing on legs but the police-man caused straight firing, therefore, one bullet was hit to Amjad Ali Bhurgri on his head, both police constables came and seeing them surprisingly went away from the spot. Hence FIR was lodged accordingly.

3.       Learned counsel for the applicant Ghulam Muhammded has inter alia contended that the applicant is innocent and has been falsely implicated in the case in hand; that FIR is delayed by 04 days without any plausible explanation and is based on hearsay evidence which is not admissable under Article 161 of Qanoon-e-Shahadat Order, 1984; that FIR does not disclose any specific role or part assigned to the applicant Ghulam Muhammad; that there are only general allegations and even the sole eye witness of the incident Aqil Samoo has not identified the present applicant at the time of incident; that initially the FIR was lodged u/s 316, 322, 114, 392, 34 PPC and subsequently, under the orders of SSP Hyderabad vide letter dated 25.07.2014, the investigation officer was directed to remove the Sections 316, 322, 114 PPC and insert Section 319 PPC therefore, the case was challaned under Section 319, 34 PPC, which according to him has been misapplied; that the learned Magistrate took the cognizance in the case of offences punishable u/s 302, 34 PPC vide order dated 25.08.2014; that no empty was secured from the place of offence but subsequently the place of incident was again revisited whereby empties were alleged to have been recovered which clearly suggests that encounter had taken place; that there is conflict in between the postmortem and contents of FIR as the postmortem did not show the presence of the complainant at the hospital; that the case against the present applicant requires further inquiry and malafide on the part of the complainant is apparent.e h

4.       Learned counsel for the complainant in rebuttal has contended that the applicants have misused the concession of bail; intentionally did not join the investigation.

5.       Learned State Counsel has opposed the grant of bail and adopted the arguments advanced by the learned counsel for the complainant.

6.       Mr. Ayaz Hussain Tunio, learned counsel for the applicant/accused Nadeem Akhtar contended that there is delay in lodging the FIR which has been lodged after due deliberation and intention; the applicant was on duty and has not committed offence; that the main ingredients of intention to commit Qatl-amd are lacking, therefore, case requires further inquiry; that the applicant/accused is a government servant and in case of refusal of bail, he may lose the service and there exists no reasonable ground to believe that the applicant has committed the alleged offence.

7.       Learned State Counsel opposed the grant of bail on the ground that witnesses have fully supported the case of prosecution.

8.       I have given my due consideration to the arguments, candidly, the learned Judicial Magistrate after examining the contents of FIR as well as statements of eye witnesses have taken the cognizance under section 190(1) Cr.P.C. in this matter under section 302, 34 PPC against both the applicants. No doubt, complaint himself is not eye witness of the incident but he lodged the FIR on the information of victim who is eye witness as well as victim of this case and his statement u/s 161 Cr.P.C. was also recorded wherein he (victim) did confirm the contents of FIR. Both the applicants / accused have not come forward with any plea of enmity against the complainant or the victim which could justify plea of false implication. Absence of such plea normally creates a circumstance against the accused, charged in a case of capital punishment. Both the applicants are police constables and being trained were / are always required to act in accordance with law and to act in aid of people.  Names of both the applicants are mentioned in FIR with specific role that one accused asked to another to fire upon the victim though the deceased and his companion told them raising cries that they are not muggers but even than straight firing was made by one accused on the instigation of another and in result one innocent citizen Amjad Ali Bhurgri lost life and thereafter, both applicants seeing the situation left the place of occurrence. The applicants / accused though have pleaded false implication but on the basis of material as well as of investigation conducted in the matter, the availability of both the applicants at the place of incident and firing by them has been established. The plea that one of the accused not fired fades when both the applicants / accused went near the shot-person and victim and deliberated to escape from place of incident which was / is not expected from a police official even if the shot-person would have been the criminal. The basic ingredients required for extra ordinary relief are lacking in this case. It is settled principle of law that bail application is required to be decided on tentative assessment of the matter and deeper appreciation of evidence is precluded. Since, on tentative assessment of material, I am of the opinion that there is sufficient material to connect the applicants with the commission of offence. Therefore, I do not find any merit in these bail applications which are dismissed.          

                                                                                                                        JUDGE

Tufail