IN THE HIGH COURT OF SINDH, CIRCUIT COURT,
LARKANA
Crl. Bail Appln. No. S- 216 of 2023.
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Applicant: |
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Mehmood son of Iqbal @ Nawab Mahar, |
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through Mr. Athar Abbas Solangi, Advocate. |
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Complainant: |
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Sher Muhammad Mahar, |
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through Mr. Shahbaz Ali M. Brohi, Advocate. |
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The State: |
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Mr. Aitbar Ali Bullo, Deputy Prosecutor General.
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Date of hearing: |
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07.08.2023. |
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Date of Order: |
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07.08.2023. |
O R D E R
Shamsuddin Abbasi, J: Through instant Criminal Bail Application, applicant/ accused Mehmood Mahar seeks his admission to post-arrest-bail in Crime No.10 of 2022, for offence under Sections 302, 120-B, 114, 137-H (2), 148, 149 P.P.C, registered with Police Station Bachal Bhayo District Shikarpur, after rejection of his bail plea by the learned trial Court vide order dated 24.03.2023.
2. It is alleged in the F.I.R by the complainant that on 20.11.2022 at about 1020 hours, the applicant along with co-accused duly armed with knife, Kalashnikovs, G-3 rifles and T.T pistols formed an unlawful assembly and in prosecution of their common object committed Qatl-i-Amd of son of complainant, namely, Zubair Ahmed, by causing fire shot and knife injuries. The co-accused Imran Mahar is alleged to have made kalashnikov shot at Zubair Ahmed. The applicant Mehmood and co-accused Shoaib and Abdul Qayoom are alleged to have caused butt blows on back side neck of Zubair Ahmed. Whereas, co-accused Abdul Qayoom and Shoaib are further alleged to have hold the deceased from his arms, while accused Munsab alias Mir is alleged to have caused cut off neck of Zubair Ahmed by knife. The motive for the alleged incident, as set out in the F.I.R is old matrimonial enmity between the parties.
3. Learned counsel for the applicant pressed this bail application mainly on the grounds that there is delay of two days in lodging of F.I.R without furnishing plausible explanation; that there is inconsistency between the medical and ocular evidence, as according to contents of the F.I.R, applicant Mehmood, co-accused Shoaib and Abdul Qayoom have caused butt blows on the back side of neck of deceased Zubair Ahmed, however post-mortem report of the deceased mentions only single injury on the back side of neck of deceased. Per learned counsel in view of above fact of inconsistency and in the background of previously enmity between the parties false implication of applicant cannot be ruled out and his case calls for further enquiry as envisaged by subsection (2) of Section 497 Cr.P.C. In support of his contentions, learned relied upon the case of Mazhar Hussain Vs. The State and another (2017 SCMR 538).
4. Conversely, learned D.P.G. assisted by learned Advocate for complainant opposed the grant of bail to the applicant on the grounds that applicant is nominated in the F.I.R with specific role of causing butt blow on the back side of neck of deceased and he actively participated in the commission of offence, which carries capital punishment, therefore, he is not entitled for grant of relief. However, he could not controvert the fact that there is inconsistency in ocular and medical version.
5. Heard learned counsel for the respective parties and perused the material available on record.
6. It is matter of record that there is admitted enmity between the parties and in the background of enmity the delay of two days in lodgment of the F.I.R, it cannot be ruled out that F.I.R has been lodged by complainant after due deliberation and consultation. It is also matter of record that, the complainant has assigned specific role of causing butt blows on back side of neck of deceased to applicant Mehmood and two co-accused, namely, Shoaib and Abdul Qayoom. The complainant has specifically mentioned seat of each injury on the person of deceased, but postmortem report of deceased shows only single injury on back of neck, i.e. injury No.4. Even otherwise, the medical officer has opined that the injuries No.2 and 3 were sufficient to cause death and none of these injuries are assigned to the applicant. Thus, in view of inconsistency in medical and ocular evidence; the case of the applicant is fully covered by Section 497 (2) Cr.P.C calling for further inquiry into his guilt. Moreover, there is no recovery of any incriminating article from possession of applicant, which may connect him with commission of alleged offense. Furthermore, the investigation of the case has been finalized and physical custody of the applicant is no more required to police for the purpose of investigation. In these circumstances continuous custody of the applicant in jail is not likely to serve any beneficial purpose at this juncture.
7. The case law relied upon by learned counsel i.e. Mukaram v. The State and another (2020 SCMR 956) is very much applicable to the facts and circumstances on instant case. In similar circumstances, the Hon’ble Supreme Court had been pleased to grant bail to accused. It was observed by Hon’ble Supreme Court as under:
“There is no denial to this fact that four persons are involved in this case with allegations of causing indiscriminate firing. The deceased sustained only one injury to his person which proved fatal, such allegation is generalized in nature and no one can be saddled with responsibility of causing injury to the deceased”.
8. In identical situation the Hon’ble Supreme Court of Pakistan in the case of Walayat and another v. The State (1984 SCMR- 530) has also granted bail to accused on the point of inconsistency in medical and ocular evidence. It was held by Hon’ble Supreme Court under:
“With regard to Walayat petitioner, he is alleged to have given a hammer blow on the ankle of the deceased but no such injury was found on the person of the deceased. On examining the post-mortem report we find it to be correct. He, too, is entitled to bail.”
9. In case of Mazhar Hussain versus The State and another (2012 SCMR 887), the Hon'ble Supreme Court while dealing with similar type of case, has held as under:-
"The record reveals that the petitioner is not charged for firing any shot at the deceased. He is charged only for inflicting an injury on the head of the deceased with sharp side of the hatchet. The said injury in the first instance was mentioned as lacerated but then changed as incised. What is the nature of the injury in view of the background mentioned above; whether charge, in the matrix of the case could be held to be exaggerated; whether the petitioner in view of the role assigned to him, could be held to be vicariously responsible for the murder of Mst. Hameeda Sultana and whether he could be awarded sentence in terms of imprisonment in view of the proviso to section 337-N(2), when so far there is nothing on the record to show that he is hardened, habitual, dangerous or desperate criminal, are the questions requiring further inquiry. The fact that the petitioner has been in jail for almost 10 months would further tilt the scales of justice in favor of bail rather than jail."
10. In view the above facts and circumstance and the dicta laid down by Hon’ble Supreme Court of Pakistan in cases (supra), the case of applicant seems to be one of further enquiry as contemplated in subsection (2) of Section 497 Cr.P.C. Consequently, the instant bail application stands allowed and applicant Mehmood Mehar is admitted to post arrest bail upon furnishing a solvent surety in the sum of Rs.300,000/- (Three hundred thousand rupees) and P.R bond in the like amount to the satisfaction of learned trial Court.
11. Before parting with this order, it needs not to make clarification that the observations recorded hereinabove are tentative in nature, therefore, the trial Court shall not be influenced in any manner whatsoever while deciding the case.
Judge
Ansari