ORDER SHEET
IN THE HIGH COURT OF SINDH, CIRCUIT COURT, LARKANA
Crl. Bail Appln. No.S-380 of 2012
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DATE OF HEARING |
ORDER WITH SIGNATURE OF HON’BLE JUDGE |
26.11.2012.
1. For orders on office objections.
2. For orders on M. A. No.1960/12.
3. For Hearing.
Mr. Khalid Iqbal Memon, advocate for the applicant.
Mr. Abdul Rasheed Soomro, State Counsel.
Mr. Nasrullah Solangi, advocate for complainant.
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NAIMATULLAH PHULPOTO, J- Applicant/accused Muhammad Ali Soomro seeks bail in crime No.29/2012, registered against accused at Police Station Warah, under Sections 302, 324, 114, 148, 149, PPC.
Brief facts of the prosecution case as disclosed in the F.I.R are that on 6.4.2012, complainant Ghulam Mustafa Kharal lodged F.I.R alleging therein that about a year ago there was a matrimonial dispute of complainant party with one Muhammad Alam Chandio Gurgage, it was resolved by the nekmards, even then Muhammad Alam was not satisfied from such settlement. In the morning of 6.4.2012 complainant alongwith his son Yaseen, brother Manzoor Ali and relative Muhammad Pinyal were going to Warah town on a donkey-cart with some work. At about 9.30 a.m., when they reached in the main street in Bareeja Mohalla, near Electricity Transformer, it is alleged that accused persons, namely, 1) Hubdar, 2) Muhammad Alam, both sons of Faiz Muhammad, by caste Gurgage Chandia, 3) Muhammad Ali Soomro, 4)Manzoor Ali Lashari and one unidentified person, all armed with pistols, intercepted them and at the instigation of accused Muhammad Alam, accused Hubdar fired, which hit to Yaseen at chest, accused Muhammad Ali and Manzoor Ali also fired from their pistols at complainant’s son Yaseen, which hit to deceased at left side of abdomen. On the cries of complainant party, accused Muhammad Alam and unidentified accused made ineffective fires from their pistols upon complainant party and then all the accused persons fled away. Thereafter complainant party went over Yaseen and found him seriously injured and then injured Yaseen was taken to Warah Hospital, where he succumbed to the injuries. The complainant then went to Police Station Warah and lodged such F.I.R.
During investigation, 161 Cr.P.C statements of P.Ws Manzoor Ali and Muhammad Pinyal were recorded. Accused Hubdar and Muhammad Ali were arrested on 11.4.2012. Investigating officer recorded 162, Cr.P.C statements of Sahab Khan, Ghulam Shabir, Haji Khan, Javed Ali and others, in which applicant/accused Muhammad Ali was not implicated. Investigating officer released accused Muhammad Ali under Section 497, Cr.P.C and accused Muhammad Ali was joined as an accused by Court. Bail application on behalf of accused Muhammad Ali was moved, the same was rejected by learned Sessions Judge, Kamber-Shahdadkot vide order dated 27.7.2012, hence, he approached this Court.
Mr. Khalid Iqbal Memon, learned advocate for applicant/accused Muhammad Ali Soomro argued that there are general allegations against applicant/accused of causing firearm injury to the deceased. Medical evidence is contradictory to the ocular evidence. Applicant/accused has been declared innocent during the investigation and his name was placed in column No.2 of the challan. Learned defence Counsel argued that prosecution case against applicant/accused is doubtful. In support of his contentions he relied upon the cases reported as Khushal v. The State, 1971 S C M R 357, Tariq Bashir v. The State, PLD 1995 S.C 34, Rana Tahir v. The State, 1996 P.Cr.L.J 1755, and Rehman alias Rehmanullah v. The State, 1998 P.Cr.L.J 143.
Mr. Abdul Rasheed Soomro, learned State Counsel, assisted by Mr. Nasrullah Solangi, learned advocate for complainant, vehemently opposed for the grant of bail to the applicant/accused and argued that applicant and others accused persons fired upon the deceased, which hit him and he failed down. In the postmortem report, it is mentioned that deceased had received firearm injuries. Learned State Counsel further argued that statements of the extraneous persons recorded by investigating officer during investigation in the favour of the applicant/accused would not be sufficient ground for grant of bail. He has also argued that four empties were secured from the place of occurrence by the I.O., which shows that more than one fires were made at time of incident. In support of the contentions reliance has been placed uon the case reported as Abdul Latif v. The State, 2006 M L D 639.
I have carefully heard the learned Counsel for the parties, perused the material available on record and the case law.
From the perusal of the contents of the F.I.R, 161, Cr.P.C statements of the P.Ws and other material collected during investigation, it transpires that there is prima facie sufficient material against applicant/accused to connect him in the commission of offence. Complainant in the F.I.R and eyewitnesses in their 161, Cr.P.C statements, have clearly stated that accused Muhammad Ali alongwith other accused with motive fired from their pistols, which hit to the deceased. In the postmortem report it is mentioned that deceased died of firearm injuries. Four empties were collected from place of occurrence. No doubt, investigating officer recorded statements of some persons during investigation, in which they have stated that applicant was not present at the time of incident, but these statements would not be valid ground for grant of bail at this stage. Under Section 4(1)(L) Code of Criminal Procedure, 1898, “investigation” includes all the proceedings under this Code for collection of evidence conducted by a police officer or by any person (other than a Magistrate) who is authorized by a Magistrate in this behalf. As regards grant of bail on the ground that police declared the applicant innocent during investigation, suffice it to say that it is not a valid ground for grant of bail as the bail can be granted in the case falling under prohibitory clause; firstly on the grounds if the Court finds that there are reasonable grounds for believing that the accused has not committed the offence; secondly, the accused is sick, infirm, under the age of 16 years, his remaining in jail would be detrimental to his life or woman; and thirdly, if the case requires further inquiry into the guilt of the accused that he has not committed a non-bailable offence etc. Such factors are not available in the present case, therefore, the applicant Muhammad Ali cannot take benefit solely on the ground that the Investigating Officer found him innocent during investigation. Even otherwise, the opinion of police is not binding upon the courts. As regards the plea of alibi, it is pointed out that when the applicant moved bail application before trial Court, he did not raise such specific plea, meaning thereby that he had no such defence at that time. Furthermore, to ascertain and evaluate the plea of alibi, the applicant has relied upon the evidence of a large number of witnesses. Such exercise cannot be undertaken at this stage, as it requires deeper appreciation of evidence which can only be done at the time of trial, when such witnesses are produced by the accused in the court and are subjected to cross-examination by the prosecution. As regards to contention of learned defence Counsel that at this stage it is not ascertainable that which of the accused has caused fatal firearm injury to deceased, keeping in view the settled principle that deeper appreciation of evidence is neither permissible nor desirable at bail stage. This question cannot be gone into deeply at this stage. Above-cited authorities referred by learned advocate for applicant/accused are quite distinguishable from the facts and circumstances of the case in hand. Prima facie, there are reasonable grounds to believe that applicant/accused is involved in the commission of alleged offence, which is punishable for death or imprisonment for life. I, therefore, find no merits in the bail application and it is dismissed.
Needless to observe that the above observations are tentative in nature and the trial Court shall not be influenced, in any manner, while deciding the case.
JUDGE
Tahir/*