Cr.B.A.No.361 of 2012.
For Hearing.
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27.08.2012. Mr.Abdul Haque G. Odho advocate for the applicant.
Mr.Muhammad Akram Jhamat advocate alongwith complainant Aijaz Ali.
Mr.Sardar Ali Shah APG.
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SALAHUDDIN PANHWAR, J- Applicant Ameer Bux alias Kuraro has moved this Application under Section 497, Cr.P.C in Crime No.212/2011 of Police Station ‘B’ Section, Khairpur, registered for offence under Section 302, 34, PPC.
The relevant facts leading to the case are as under:-
“Complaint is that I am doing labour, we are three brothers each Gulzar Ali aged about 35/36 years and Ayaz Ali. Due to some personal grudge previously Mashooque and Ghulam Nabi alias Gulu Maitlo and others had committed murder of my brother Imtiaz Hussain, inspite of that their relatives used to say that they will commit murder of our persons. Today after noon time, I, my brothers Gulzar Ali, Ayaz Ali and Mumtaz Hussain S/O Allah Wadhayo Maitlo together were coming from house with some work towards Luqman side. When at about 1 PM, we reached at Sim Nali Luqman, Maitla Muhalla Luqman near shop of Azizullah Maitlo, 2.Zulifquar alias Gudu, both sons of Ghulam Nabi alias Guloo, 3.Rahib, 4.Sahib, both sons of Allah Dino, by caste Maitlo, R/O Sim Nali Luqman, all were armed with Pistols came running towards us by challenging and said that today they will commit murder of Gulzar Ali. Manwhile the accused Amir Bakhsh alias Kuraro with intention to commit murder opened fire with Pistol, which hit to my brother, who raised cries and fallen down, and accused Zulifqar alias Guddu also opened fire upon him, which hit him on left leg and accused Rahib and Sahib pointed out Pistols upon us and said that no one should come near, due to fear of weapons we remained silent, then all the accused ran away towards western side with their weapons. Then we went and saw that my brother Gulzar Ali had sustained fire from right side of neck and was bleeding and another fire hit from back side of knee of left leg through and through from thigh and was bleeding, within our sight he died on spot by shivering, then while leaving the above witnesses for protection of dead-body, now I have appeared and making complaint that the above-named accused in furtherance of their common object, on old murderous dispute they made fires with Pistols upon my brother Gulzar Ali and killed him”.
Record further reveals that after lodgment of the FIR, the investigation was carried out, the applicant/accused was arrested and the case was challaned before the trial Court, the same is pending adjudication.
The applicant/accused had moved his bail application before the trial Court but the same was dismissed vide order dated 30.04.2012.
The learned counsel for the applicant/accused has inter-alia contended that though the applicant is specifically named in the FIR but this is a case of conflict between medical and ocular evidence; according to the ocular evidence the fatal injury was caused by the applicant to deceased Gulzar on the right side of his neck whereas the postmortem report shows the said injury on the upper side of the chest and it is a material conflict between ocular and medical evidence hence the same can be considered at bail stage; according to the prosecution case, the FIR was lodged on 25.10.2011 at 1330 hours but the postmortem report reflects that the dead body was received on same date at 1.20 PM. In support of such contention, he has relied upon the case law reported as Syed Abdul Baqi Shah v The State (1997 S C M R 32) and Moeen Butt v The State (2004 P.Cr.L.J 545).
Conversely the learned counsel appearing for the complainant has contended that the applicant/accused is specifically assigned the role in the FIR; recovery of 2 empties of pistol has been effected from the place of wardat and during investigation, the police has also recovered pistol from the applicant; prior to this incident, one Imtiaz Hussain the brother of complainant was also killed by the father of applicant co-accused Ghulam Nabi alias Gullu, who is still absconder and this is a case of brutal murder. In support such contentions, he has relied upon the case law reported as Syed Mahboob Shah v The State (1995 SCMR 1099) and Amanullah v The State (PLD 2009 SC 542).
Learned APG appearing for the State has adopted the same arguments as advanced by the learned counsel for the complainant and has vehemently opposed this bail application.
Heard the arguments of the learned counsel for the respective parties and perused the material available on record with their assistance.
Candidly the present applicant has been assigned specific role of causing fatal shot to the deceased and the FIR was lodged within 30 minutes of the incident; the pistol was recovered from the possession of the applicant during the course of investigation, such recovery is admissible under Article 40 of Qanun e Shadat Ordinance 1979; Applicant’s counsel has mainly argued only one ground that there is a conflict between ocular and medical evidence and he has emphasized that medical evidence negates the ocular version . To decide this aspect of the case I have given my careful examination to the ocular version and post mortem report. According to ocular version injury was caused on the right side of neck of the deceased and it will be more appropriate to reproduce such portion of the FIR ‘we went close to my brother Gulzar Ali and saw fire shot injury from right side of neck and blood was oozing’ and the medical report shows the seat of injury ‘over the right upper part of chest at the level of IInd intercostals space near anterior ancillary line’. From the bare examination of FIR, mashirnama of dead body and postmortem report, apparently there is no conflict between medical and ocular evidence and the slightest difference of inches about the seat of injury cannot be termed as conflict in medical and ocular evidence, therefore, the authorities referred to on the ground that benefit of ocular and medical evidence can be extended to the accused, are distinguishable to the facts and circumstances of the present case and it is also a settled law that in criminal administration of justice, every case is to be decided on its own merits.
Keeping in view above facts and circumstances, reasonable grounds exist in this case against the applicant thus applicant is not entitled for bail after arrest.
JUDGE
These are the reasons of short order dated……..
Akber.