ORDER-SHEET

IN THE HIGH COURT OF SINDH, CIRCUIT COURT LARKANA

Crl. Bail Appln. No.  S- 140 of 2013.

Date of hearing

Order with signature of Judge

16.09.2013.

            Mr. Habibullah G. Ghouri, Advocate for the applicant.

            Mr. Aijaz Ahmed Bhatti, Advocate for complainant.

            Miss. Shamim, State Counsel.

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Abdul Maalik Gaddi, J:     having remained unsuccessful in obtaining his release on bail in case F.I.R No.58/2009, dated 03.12.2009, under Section 302, 324, 148 & 149 P.P.C, registered at P.S Arija, District Larkana; the applicant Saeed Khan son of Mohammad Khan Kharos is seeking his release on bail through instant bail application.

2.         The facts of the prosecution case are that on 03.12.2009, at 1700 hours, complainant Moutbar Khan Kharose lodged F.I.R with P.S Arija, in which he stated that his murderous enmity is running with Dur Mohammad Kharose. Today, evening complainant alongwith each Mohammad Ameen son of Noubat Khan, 2. Nizam son of Faqir Mohammad, 3. Sohrab son of Faqir Mohammad left Larkana for village on Qingqi, which was driven by Sohrab. When they reached at Arija/Zakria Link Road, they saw from hay (Palal), each accused Dur Mohammad son of Dili Jan with iron rod, 2. Irfan son of Ghulam Abbas with hatchet,          3. Noor Mohammad son of Habibullah with lathi, 4. Aijaz son of Shareef with pistol, 5. Zakir son of Mohammad Khan with pistol, 6. Saeed Khan son of Mohammad Khan with pistol, 7. Mohammad Khan son of Dili Jan with lathi, 8. Shah Nawaz son of Sher Dil with pistol, and 9. Saleem son of Ghulam Abbas with pistol, all by caste Kharose, resident of their own houses near Zakria Mahessar, taluka Larkana, emerged from heap of paddy straw, accused Dur Mohammad, Noor Mohammad, and Irfan caused hatchet and lathi blow on the head of Mohammad Ameen, while accused Aijaz, Zakir and Saeed Khan fired with their respective pistols with aim to kill PW Nizam, which hit on his front side neck, left side breast and back side left buttock and accused Mohammad Khan also caused iron rod blow on his head. Accused Shah Nawaz and Saleem caused firearm injury to Sohrab, which hit him on his waist and thigh. All injured fell down from the Qingqi on the ground and blood was started oozing. On fire shots and noise, the villagers came there and then accused ran away from the spot; then complainant shifted the injured to hospital after observing all legal formalities.

3.         I have heard the learned Advocate for applicant, learned State Counsel, learned Advocate for the complainant and have perused the police papers with their able assistance.

4.         Learned counsel for the applicant argued that the applicant is innocent and has falsely been implicated in this case. According to him, there is delay of about one month in recording the statements of prosecution witnesses under Section 161 Cr.P.C. in which the general allegations are leveled against all the accused and no specific role has been assigned by the prosecution witnesses in their statements. No specific role has been assigned to present applicant in the commission of the offence, but there are general allegations against applicant in F.I.R. He has further submitted that no recovery of pistol is effected from the present applicant but instead one gun was shown to have been recovered, which falsify the version of the complainant. He has further submitted that, applicant is behind the bars since long, but trial of the case has not been concluded, therefore, he was of the view that in the given facts and circumstances of the case, present applicant is entitled for bail. In support of his arguments he has relied upon an un-reported bail Order dated 05.01.2012, passed in Crl. Bail Appln. No. S- 430/2011, and so also has relied upon case law reported in PLD 1989 S.C. 347, 1996 SCMR 1125, 2002 P.Cr.L.J 494, 2007 P.Cr.L.J 987, 2004 P.Cr.L.J 1785, and 1980 SCMR 784.

5.         Conversely, learned State Counsel assisted by learned Advocate for complainant has opposed this bail application on the grounds that applicant was identified on the spot; five empties of 30-bore have been recovered from the place of vardat; the delay if any in lodging the F.I.R has been fully explained;  and the medical evidence has supported ocular version. Learned Advocate for complainant places his reliance on 2004 YLR 400,  and 2000 P.Cr.L.J 33 (Lahore).

6.         After hearing the parties Advocates and after perusing the police papers, it reveals that alleged incident has taken place on 02.12.2009, at 5.00 p.m. whereas F.I.R was lodged on 03.12.2009, at 1700 hours. Apparently, in view of nature of the offence there appears no inordinate delay in lodging the F.I.R by complainant, as according to complainant after the incident was over, he took injured Ameen (who then died), injured Nizam and Sohrab in a serious position to hospital for treatment after observing all legal formalities. The delay appears to have satisfactorily explained. From the record it reveals that the applicant is nominated in the F.I.R with specific allegation that he alongwith co-accused Aijaz and Zakir have made direct firing with their respective pistols, which hit to PW Nizam on his front side neck, left side breast and back side left buttock; medical evidence has supported the version of prosecution. Prosecution witnesses in their statements recorded under Section 161 Cr.P.C. have also supported the prosecution case.  Merely, arguing that there is some delay in recording the statements of witnesses under Section 161 Cr.P.C. has no force in view of peculiar circumstances of this case, as during the incident PWs: Nizam and Sohrab have received serious injuries, whereas Mohammad Ameen was died during treatment. As observed above, the applicant was specifically charged with the firing on P.W Nizam (injured), on his vital part of the body alongwith co-accused. Merely, arguing by the learned advocate for applicant that the allegations are only general in nature and no specific injury on injured was attributed to the applicant, could not make the case against him one of further inquiry. In this regard, I am supported with case law reported in 1995 SCMR 1765. 

7.         Since no case of bail is made out, therefore this bail application stands rejected. The case law cited by the learned advocate for applicant has been perused and considered, but did find applicable to the facts of the present case, hence same is not helpful to him at this stage.

8.         Before parting with the order, I would like to make it clear that any observations in this order, which is tentative in nature, shall not affect the merits of the case. From the record it also reveals that the matter pertains to 2009, however, in the circumstances it would be appropriate to give directions to the learned trial Court to decide the case as early as possible in the circumstances of the case. Accordingly, leaned trial Court is directed to decide the case as soon as possible preferably within the period of two months from receipt of this order.

Dated: 20.09.2013.

Judge