ORDER SHEET.
IN
THE HIGH COURT OF SINDH, BENCH AT SUKUR.
Cr.B.A.No.563 of 2012:
For Hearing:
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07.12.2012. Mr.Ubedullah K. Ghoto advocate for the applicant.
Messrs Sikander Ali Siyal and Mehfooz Ahmed Awan advocates for the complainant.
Mr.Abdul Rehman Kolachi, APG.
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SALAHUDDIN PANHWAR,J- Applicant Mushtaque Ahmed Kobhar seeks bail in Crime No. 149/2005 of Police Station, Daharki, District Ghotki, registered for an offence under Section 302, 324, 114, 34, PPC.
2. The relevant
facts of the case are that Complainant Nawab Kobhar
alongwith his brother Mazari, Zameer Ahmed, Sijawal and Jageer were on the
way towards village Jumo Kobhar,
when they reached near the house of Hazaro Kobhar at 10.30 AM, they were intercepted by Mushtaque (applicant)
having Kalashinkov, 2.Sobharo having pistol, 3.Hayat
having gun and Morio.at the instigation of Morio,
accused Musthaq caused fire shot at Sijawal with intention to kill him and accused Hayat fired
shot at PW Jageer both falling down; accused persons
while causing aerial firing went away. Thereafter the complainant and PWs saw Sijawal having fire arm injuries on the left side through
and through and Jageer having fire arm injuries on
shoulder, thigh and right arm and blood was oozing. After first aid at
3. Learned counsel for the applicant, has inter alia contended that there is a delay in lodging FIR, no plausible explanation is brought on record; counter cases are in existence between the parties, complainant party is on bail; question of aggression and aggressed upon will be determined at the trial stage, there is conflict between ocular and medical evidence, therefore, instant case falls within the definition of further enquiry. He has relied upon the case law reported as PLD 2009 SC 58, 2009 MLD 796 and 1995 SCMR 1316.
4. Conversely learned APG appearing for the State has vehemently opposed for grant of bail on the ground that applicant is nominated in the FIR with specific role of causing fire arm injuries to deceased, who lost his life; counter case, is managed by the accused party and it cannot be said that the same is genuine counter case; delay is well explained by the complainant; PWs have fully supported version of complainant.
5. Heard the learned counsel and perused the record.
6. I have meticulously examined the police papers and depositions of PWs Nawab Ali, and Jageer. The allegation against the applicant/accused is that of causing fire arm injuries to the deceased.
7. The learned counsel for the applicant has mainly emphasized that the case is one of further inquiry, therefore, the applicant / accused be admitted to bail. I I am conscious of the fact that while deciding bail plea (s) the courts have to mainly rely upon the material brought on record by prosecution including FIR, statement of complainant, statement u/s 161 Cr.PC as well as incriminating/circumstantial evidence etc, which too, to form a tentative assessment and such document (s) are not to be thrashed in such a manner that it could result in deeper appreciation of evidence or material which is not permissible within scope of Section 497/498 Cr.P.C. It is pertinent to mention that this is a day time incident, name of applicant with specific role transpires in FIR as well as in statements under Section 161, Cr.P.C. Moreover PWs while deposing in trial Court have deposed in same line and categorically stated that the applicant has caused fatal shot to injured Sijawal who succumbed to injuries.
8. Regarding delay in FIR, needless to says that delay in FIR per se is no ground for accused to claim bail; and contradiction between medical and ocular evidence, pointed out, by the counsel cannot be termed ‘conflict’ as the ocular evidence and medical evidence are in same line that fire arm injuries were caused to the deceased and the deceased died due to that injuries; slight differences about seat of injury in ocular and medical evidence cannot be counted as ‘conflict’, therefore, me judice applicant / accused has failed to bring his case within meaning of subsection (2) of Section 497 Cr.P.C within permissible scope of Section 497 Cr.P.C. I am strengthened in my view with the case law of Muhammad Abbasi Vs State, reported in 2011 SCMR 1606. The operative part whereof is reproduced hereunder:-
“It is well settled that mere possibility of
further inquiry which exists almost in every criminal case, is no ground for
treating the matter as one falling under subsection (2) of Section 497 Cr.P.C
and it is not possible to release the accused notwithstanding the fact that he
is involved in heinous criminal case, particularly, in the case where the
eye-witnesses have duly implicated him with the commission of offence”
9. Regarding the case law relied upon by the counsel for the applicant, it is necessary to say that in criminal administration of justice each case is to be decided on its own peculiar facts and circumstances. On this analogy; ratiocination of referred precedents is different from the facts and circumstances of this case.
10. Above are the detailed reasons of short order dated 07.12.2012 whereby this bail application was dismissed.
JUDGE
Akber.