IN THE HIGH COURT OF SINDH BENCH AT SUKKUR
Crl. Bail Application No.S-708 of 2019.
DATE
OF HEARING |
ORDER WITH
SIGNATURE OF JUDGE |
1. For orders on
O/objection at flag-A.
2. For the hearing
of bail application.
Date
of hearing 03.02.2020.
Date
of order 10.02.2020.
Mr. Achar Khan
Gabole Advocate for the applicant.
Mr. Sardar
Akber F. Ujjan Advocate for complainant.
Mr.
Abdul Rehman Kolachi DPG for State.
***************
O R
D E R
ZULFIQAR ALI SANGI, J; Through instant bail application, applicant
Shahnawaz seeks Post-arrest bail in Crime No.36/2019 registered at Police
Station, Lakha Road for offence under Sections 302, 324, 337H(ii), PPC. Earlier
his bail application was declined by learned Ist Additional Sessions
Judge/MCTC, Naushehro Feroze vide order dated 23.11.2019.
2. The
brief facts of the prosecution case are that on 12.06.2019 at 1515 hours, the
complainant Bashir Ahmed Khaskheli appeared at Police Station, Lakha Road where
he got registered FIR of this case with the Police, stating therein that he
resides with his brothers and his brother Ghulam Shabir cultivates the land of
Fateh Muhammad Mari on harp basis. On 11.06.2019 he along with his brother
Ghulam Shabir went to looking after land situated in village Mohammad Laique
Khaskheli and were looking after the same where the landlord Fateh Muhammad
Mari also came in village Mohammad Laique Mari. The complainant along with his
brother Ghulam Shabir were sitting near otaq of Abdul Hameed Khaskheli where
his landlord Fateh Muhammad Mari, Abdul Hameed Khaskheli and Azizullah were
also sitting, it was about 10:00 a.m. the accused Qalandar Bux and Bashirs
armed with repeaters, Mohammad Bux armed with DBBL gun, Panjal, Ghulam Hussain,
Shahnawaz and Yameen armed with rifles, Zameer and Allah Dino armed with K.Kov
and Karim Bux armed with Pistol came from western side and gave hakal to
complainant party by abusing them. The accused Muhammad Bux Mari instigated
other accused to commit the murder of the complainant party. On his instigation
accused Qalandar Bux Mari made straight fire from his repeater upon the brother
of the complainant which hit him and he fell by raising cries. Accused Zameer
Mari also made a fire of K.Kovs upon Abdul Hameed who fell down by raising
cries while accused Shahnawaz also made a straight fire upon Fateh Muhammad
Mari who fell down by raising cries. They also made a straight fire upon
complainant who also fell down and raised cries. On cries and gunshot reports
the co-villagers came running there, on seeing the accused persons went away by
making slogans and also making aerial firing to harass the complainant party. The
complainant then saw his brother Ghulam Shabir sustained firearm injuries on
his head and the upper side of arms blood was oozing and was died, while blood
was oozing from the head of Abdul Hameed. He then conveyed information to the
Police and obtained a letter for medical treatment of injured and conducting
postmortem of deceased then he went to RHC Mehrabpur, after postmortem and
funeral rite he lodged FIR.
3. Learned Counsel
for applicant contends that the applicant has falsely been involved in this
case by the complainant with ulterior motives; that there is delay of one day
in registration of FIR; that allegation against applicant is for causing injury
to PW Fateh Muhammad, said injury declared by doctor as Jurh-Ghayar Jaifah-Mutalahimah
punishable up to three years which does not fall within the prohibitory clause
of section 497 Cr.P.C; that there is contradiction in ocular and medical
evidence; that co-accused have been granted bail by the trial court so also by
this court. Lastly, he contended that the applicant is behind the bar without
any progress in the trial and prays for the grant of bail. He relied upon the
cases of Awal Khan and 7 others V. The State through AG-KPK and another (2017
SCMR 538), Wajid Ali V. The State and another (2017 SCMR 116), Muhammad Ramzan
V. The State (2017 YLR 964), Malik Muhammad Aslam V. The State and others (2014
SCMR 1349) and Muhammad Boota V. The state and others (2014 SCMR 1335).
4. Conversely,
Mr. Abdul Rehman Kolachi learned Deputy Prosecutor General appearing for the
State, assisted by Mr. Sardar Akber F. Ujjan, learned counsel for complainant vehemently
opposed the bail on the ground that the applicant is nominated in the FIR with
specific role of causing firearm injury to PW Fateh Muhammad; that S.149 is
also applicable in the case; that all the prosecution witnesses fully supported
the case in their statements under section 161 Cr.P.C and lastly they prayed
that bail application may be dismissed. They relied upon the cases of Inayat V.
The state (2002 SCMR 129) and Wahid V. The State (PLD 2002 SC 62).
5. I
have heard arguments of learned Counsel for the parties and perused the material
available on record with their able assistance.
6. The
role assigned against the present applicant was that he was armed with a rifle
and fired upon PW Fateh Muhammad who received firearm injury on his right leg.
Police issued latter for treatment to injured Fateh Muhammad which shows only
one injury and the mashirnama of inspection of injuries of Fateh Muhammad was
also prepared by the police during the investigation which also shows one
injury, whereas the medical certificate issued by the doctor shows that Fateh
Muhammad received two injuries on his right leg. A most important aspect is
that it was alleged against the applicant that he was armed with the rifle but
doctor certified the said two injuries of injured Fateh Muhammad as of Gun
Shot. The record further showed that from the place of wardat empties of cartridges
were also recovered and some of the accused were armed with repeater and guns
which they used at the time of the incident. In such a situation recovery of
rifle cannot be used against the applicant at the bail stage.
7. It is a
well-settled principle of law that deeper appreciation of evidence is not
permissible under the law and the material is to be assessed tentatively from
the tentative assessment of ocular and medical evidence collected during the
investigation, the case against the applicant is one of further inquiry.
8. The
question of common intention cannot be decided at the stage of bail and the
same is to be decided by the trial court after recording the evidence of
prosecution witnesses. Applicant not fired upon deceased nor he repeated the
fire upon any of the injured and the injured Fateh Muhammad also received injury
on his right leg which is non-vital part of the body, all these facts
tentatively suggest that the applicant had not shared his common intention with
co-accused who murdered deceased. Further, the injury declared by the doctor in
the final medical certificate of injured Fateh Muhammad is Jurh-Ghayar
Jaifa-Mutalahimah for which three years punishment is provided and the same does
not fall within the prohibitory clause of section 497 Cr.P.C.
9. This
court cannot go into the depth of the case which may prejudice the case of
either party but had gone through the material available on record tentatively,
from the tentative assessment of the material available on record the applicant
is made out a case for grant of bail, therefore, this bail application is
allowed and applicant is granted bail subject to furnishing his solvent surety
in the sum of Rs: 500000/= (Five lacs) to the satisfaction of trial court.
10. Needless
to mention here that observations made hereinabove are tentative and the trial
Court may not be influenced by the same and decide the case on its own merits
as per evidence and the material made available before it.
Bail
application stands disposed of.
J U D G E