IN THE HIGH COURT OF SINDH, CIRCUIT COURT,

LARKANA

Crl. Bail Appln. No.  S-  273 of 2021.

Applicant:                 Akbar Ali Bhatti, through Mr. Asif Ali Abdul Razzak Soomro, Advocate.

Complainant:            Sher Khan, through Mr. Mumtaz Ali Brohi, Advocate. 

Respondent:              The State, through Mr. Muhammad Noonari, Deputy Prosecutor General.

Date of Hearing:       12.07.2021.

Date of Order:           12.07.2021.

O R D E R

Adnan-ul-Karim Memon, J:         Through the captioned bail application under Section 497 Cr. P.C, the applicant Akber Ali son of Arbab Bhatti is seeking post-arrest bail in respect of cognizable offense registered on 06.12.2020 on behalf of complainant Sher Khan at Police Station Mirpur Buriro, being FIR No. 44/2020, under Sections 302, 504, 114, 148, 149 PPC, with an unsuccessful attempt to secure bail in that regard having earlier been made vide like application preferred before the learned Additional Sessions Judge-II, Jacobabad, where the case is stated to be pending.

Concisely the version of the events depicted in the aforesaid crime and the accusation made against the applicant is that his name was taken by the prosecution witnesses in their 161 Cr.P.C statements on 06.12.2020 and implicated him with the active role of causing firearm shot injury to deceased, which hit him on his left shoulder. Such report of the incident was made before the concerned Police station on 06.12.2020. Finally, the applicant was arrested and booked in the aforesaid crime. He being aggrieved by and dissatisfied with his arrest in the aforesaid crime, preferred bail application No.53 of 2021 before the learned Additional Sessions Judge-II, Jacobabad, however, his plea was rejected vide order dated 13.04.2021 on the ground that he is connected with the offense charged with an active role of causing firearm shot injury to deceased. Prima facie the alleged offense took place on 05.12.2020 and the name of the applicant though did not figure in FIR, however, he was later implicated by the P.Ws in their 161 Cr. P.C statements after lodging of FIR on 06.12.2020 by the complainant.

Learned counsel for the applicant mainly contended that as per contents of FIR there were six accused, fourhave been nominated and two are shown unidentified and all the accused were allegedly armed with T.T pistols. However, the name of the applicant does not transpire in the FIR and even no description, feature, hulia of both unidentified accused are also shown; that as per FIR all the six accused fired T.T pistol shots one by one, at the deceased Muhammad Ali, i.e. each accused has alleged to have fired a single shot at deceased Muhammad Ali and as per mashirnama of the place of the incident only four empties of 30 bore have been secured by the investigating officer. Learned counsel pointed out that as per FIR one unidentified accused fired from his T.T pistol at deceased Muhammad Ali, which hit on his left arm muscle, and another unidentified accused also fired T.T pistol directly at Muhammad Ali which hit on his pelvis. He further pointed out that the statements of both the P.Ws namely Manthar and Muhammad Rahim were recorded on 06.12.2020 and in their respective statements both P.Ws have nominated the present applicant as the fifth accused. Even otherwise the injury ascribed to the applicant is not fatal which hit on the vital part of the body i.e. left arm muscle; that the ocular version is belied by the medical evidence as well as circumstantial as to the number of injuries and recovery of empties from the place of incident. Per learned counsel nothing was recovered from the present applicant, however, the I.O has foisted the recovery of T.T pistol from the present applicant at the behest of the complainant to strengthen the main case. Per learned counsel, the prosecution story is highly doubtful as such it calls for further inquiry.

On the contrary, learned D.P.G. assisted by learned counsel for the complainant has supported the impugned order and argued that the applicant was charged to have actively participated in the alleged crime by having T.T pistol in hand by firing upon the deceased; post mortem report supported the prosecution case; witnesses have fully supported the case of the prosecution and they would not seem to have any ostensible reason to falsely implicate the applicant. In support of his case, he relied upon the case of Abdul Bari Vs. The State (2018 YLR 376), Mehrullah, and two others Vs. The State (2018 PCR.L.J Note 50), Suhail Ahmed Vs. The State (2000 PCR.L.J. 235) and Muhammad Sharif Vs. The State (2010 MLD 1342).

I have heard the learned counsel for the parties and perused the material available on record and case-law cited at the bar.

            It is a settled principle of law that at the bail stage the Court has only to see whether the accused was charged with the commission of a crime or not and for that purpose only a tentative assessment of evidence is to be made and deeper appreciation of evidence does not call for.

Tentative assessment of record reveals the following position:-

i)         FIR of the incident was lodged on 06.12.2020, whereas the alleged offense took place on 05.12.2020.

ii)        The name of the applicant does not transpire in the FIR.

iii)       Complainant has disclosed in the FIR about the old enmity between the parties.

iv)       Further statement of complainant was recorded on 10.12.2020 with certain improvements.

v)         Mashirnama of recovery of four empties of 30 bore does not tally with the T.T pistol allegedly recovered from the applicant.

vi)       Mashirnama of inspection of dead body recorded on 05.12.2020 with certain injuries.

vii)      Statements of P.Ws Manthar and Muhammad Rahim were recorded on 06.12.2020 implicating the applicant.

viii)     The ballistic report prima-facie shows that three, 30 bore crime empties were not fired from the 30 bore pistol allegedly recovered from the applicant.

ix)       Post mortem was conducted on 05.12.2020, whereas the FIR was lodged on 06.12.2020.

x)         Prima-facie, medical evidence belied the evidence of firearm injury attributed to the applicant from the alleged T.T pistol.

xi)       No description, feature, hulia of both unidentified accused are shown in the FIR.

xii)      As per FIR all the six accused fired T.T pistol shots one by one at the deceased i.e. each accused has alleged to have fired a single shot at deceased Muhammad Ali; and

xiii)     As per mashirnama of the place of the incident only four empties of 30 bore have been secured by the investigating officer.

xiv)     As per FIR one unidentified accused fired from his T.T pistol at deceased Muhammad Ali, which hit on his left arm muscle, and another unidentified accused also fired T.T pistol directly at Muhammad Ali which hit on his pelvis.

xv)       Prima-facie, the injury ascribed to the applicant on the left arm muscleof the deceased could not play a decisive role to cause his certain death.

xvi)     The ocular version is belied by the medical evidence as well as circumstantial as to the number of injuries and recovery of weapon; and, empties from the place of incident.

            Keeping in view the above-settled principle of law, a tentative assessment of all the above factors and the material available on record makes the case of the applicant one of further inquiry in terms of subsection (2) of Section 497 Cr.P.C. Accordingly, the captioned bail application was allowed vide short order dated 12.7.20201, whereby the applicant was admitted to post-arrest bail subject to furnishing his bail bond in the sum of Rs.200,000/- (Two hundred thousand rupees) with one surety and P.R bond in the like amount to the satisfaction of the learned trial Court. These are the reasons for the short-order dated 12.7.2021.

The case-law cited by learned DPG is of no help in the circumstances of this case.

Needless to mention here, the observation made hereinabove is tentative which shall not prejudice the case of either party at trial.

                                         Judge