IN THE HIGH COURT OF SINDH AT KARACHI

Before :Mr. Justice Fahim Ahmed Siddiqui

Criminal Bail Application No. 1147 of 2016

Raheem Bux……………….............……………………...…………………..Applicant

Versus

The State……………………………………….…………..……………….Respondent

Date of Hearing &Order : 06.02.2017

Mr. Muhammad Hassan Jakhro, advocate for the applicant

Mr. Jamil Ahmed Shah, advocate for the complainant

Ms. Rahat Ehsan, DPG for State

O R D E R

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FAHIM AHMED SIDDIQUI, J:This order will dispose of instant criminal bail application moved by the applicant abovenamed who is involved in Crime No.88/2016 under Section 302/392/397 PPC of PS Thatta.

2. Allegation against the applicant is that he along-with his associates took part in the murder of deceased.

3. The facts as per FIR are that the complainant party was returning after attending marriage ceremony on a motorcycle as pillionriders. In the way to their home, the applicant along with co-accused namely Gulab and NabiBux, armed with deadly weapon, intercepted the complainant party. They challenged the complainant party for dire consequences and then accused Gulab made straight fire with pistol which hit brother of complainant namely Dodo and all of them fell down on ground. Other co-accused also fired with their respective weapons and then accused persons after robbing their motorcycle escaped from the place of incident.

4. Learned counsel for the applicant made submissions at length. Gist of his argument is that the applicant was not present at the place of incident as such he was shown in column No.2 of final report. Alleged story is false as the applicant is involved due to enmity. Deceased had abducted daughter of accused Gulab and such FIR was also lodged. Deceased was also involved in criminal cases as such he was a hardened criminal and had enmity with so many persons. He placed reliance on 2013 YLR 1096.

5. Learned counsel for the complainant opposed the instant bail plea. He argued that the applicant is nominated in FIR with specific role. It is not mentioned anywhere in FIR about enmity with accused persons. Involvement of a person in criminal cases is not a licence to accused persons to take law in their hands. Learned DPG for the state also opposed instant bail application by adopting submissions made by learned counsel for the complainant. In addition, she submitted that injured accused who received cross injury upon his shoulder had recorded his statementin which he stated that the present applicant is one of the culprits.

6. After hearing the submissions at bar, I have also gone through the record placed before me.I have scanned the record in the light of arguments advanced by learned counsel and came to following conclusion.

a) The applicant is well nominated in the FIR with ocular account by the complainant. The eye-witnesses of the incident also named him as one of the culprit in their statements.

b) Relationship between the complainant, deceased and witness of ocular account is not sufficient to say that they have falsely involved accused persons in instant case, especially when FIR was lodged on the same day without any delay.

c) In the present case, the plea of alibi based on affidavits needs evidence and the same cannot be considered at bail stage as it requires evidence.

d) As per FIR, the applicant is shown armed with weapon and there is specific allegation of firing as for which ocular account is also available, as such he is one who facilitate the main culprits to achieve the target.

e) The applicant associated with the arrested accused and he was not only shown available at the scene of occurrence but also took part in firing, hence common intention is there. Common intention is not only transpires from the body of FIR but it is also reflecting from statement of witnesses recorded during investigation.

f) Although allegation of enmity between complainant party and accused persons is not mentioned in FIR but evenif it is considered that there is animosity between the parties then it is settled law that enmity is a double edged weapon which cuts both side.

g) It is also alleged that deceased was involved in other cases but this argument will also not improve the applicant’s case for pre-arrest bail when as conditions specified for the relief under Section 498 Cr.P.C. are not available.

7. In view of the above, the applicant is not entitled for extraordinary relief under Section 498 Cr.P.C. Therefore, the order dated 10.08.2016 is recalled.

JUDGE