ORDER-SHEET

IN THE HIGH COURT OF SINDH, CIRCUIT COURT LARKANA  

Crl. Bail Appln. No. S- 153 of 2014.

Date of hearing

Order with signature of Judge

 07.11.2014.

            Mr. Rashid Mustafa Solangi, Advocate for applicant.

            Mr. Qazi Sajid Ali Qureshi, Advocate for complainant.

            Mr. Munir Ahmed Abbasi, D.D.P.P.

~~~~~

Abdul Maalik Gaddi, J:     Applicant/accused Jameel Junejo seeks post arrest bail in Crime No.103/2012, registered under Sections 302, 324, 148, 149, 114 and 337-H (2) P.P.C. at Police Station Ratodero.

            Brief facts of the prosecution case as per F.I.R lodged by complainant Muhammad Siddique alias Muhammad Haseeb Zangejo with P.S Ratodero are that his brother Ali Khan, accused Qaisar and others fought with each other as matter of joke with the result his brother had received injuries and letter was obtained from P.S Ratodero for treatment, on that accused Qaisar Khan and others were annoyed. It is further stated in the F.I.R that on 23.5.2013, complainant alongwith his brother Ali Khan and nephews Laung Khan as well as Juma Khan were available in-front of hotel of Imamuddin Zangejo, at about 5.30 p.m. from eastern side street accused Ali Raza armed with Kalashnikov, Qaisar with pistol, Jameel with rifle and three unidentified persons having repeaters appeared on three motorcycles and got down from the motorcycles, out of them accused Qaisar instigated co-accused that not to spare Ali Khan on that co-accused Ali Raza made straight fire from his Kalashnikov upon brother of complainant namely, Ali Khan with intention to commit his qatl-e-amd with the result he on receiving firearm injury on below right side of abdomen fallen down; complainant party raised cries on that accused Jameel caused butt blow of his rifle to P.W Juma Khan on his head while accused Ali Raza with similar intention to commit qatl-e-amd made straight fire upon Juma Khan who on receiving firearm injury fallen down and also accused Ali Raza made straight fire with similar intention upon PW Loung Khan, who received firearm injury on right arm, thereafter all the accused firing in air ran away on their motorcycles and complainant immediately took injured P.Ws to Taluka hospital Ratodero for treatment, where one of the PWs: Ali Khan expired, while rest of the injured were referred to Larkana hospital, hence such F.I.R was lodged.

            Bail application was moved on behalf of the applicant/accused, the same was rejected by the learned 1^st Additional Sessions Judge, Larkana, by his order dated 07.2.2014.

            Heard the learned counsel for the applicant/ accused, learned counsel for complainant and learned D.D.P.P, as well as perused the record.

            It is contended by the learned counsel for the applicant/ accused that the case against applicant/ accused is false and has been registered due to enmity. He has further submitted that there is no specific allegation against applicant/ accused of causing any injury to deceased Ali Khan. According to F.I.R he caused butt blow of his rifle to PW Juma Khan on his head and the injury to P.W Juma Khan is simple in nature as reflected from medical certificate issued by the Medico-legal officer. He has further submitted that although allegedly the applicant was armed with rifle, he has not used the same by firing either on deceased or on any injured, hence it cannot be gathered that he had any intention to murder any one, as such the case of applicant requires further inquiry.  During course of arguments, he has also reiterated the same facts and grounds as urged in the bail application. However, in support of his arguments he has relied upon case of Abdul Aziz Vs. The State (1996 SCMR 1693), Mumtaz Hussain and others Vs. The State (1996 SCMR 1125), Abdul Wahid and 3 others Vs. The State (2009 P.Cr.L.J 719), Muhammad Asif and another Vs. The State (2012 YLR 550) and Khawar Ali Vs. The State and others (2014 MLD 124).

            Conversely, learned D.D.P.P for the State assisted by advocate for complainant opposed the bail application on the ground that name of the applicant/ accused is appearing in the F.I.R with specific allegations; that at the time of incident applicant/ accused was armed with rifle and during incident he has facilitated to the principal accused and has also played active role in the commission of offence by causing rifle butt blow to P.W Juma Khan on his head, which is vital part of his body and it was the luck of P.W Juma Khan that his life is saved although the intention of the applicant/ accused was apparent that he caused butt blow of rifle with intention to commit his murder; recovery of crime weapon was also effected from his possession. He further submitted that applicant is hardened, desperate and dangerous criminal, as he is involved as many as in eight cases and in this regard counsel for complainant has filed a statement containing the list of F.I.Rs against applicant/ accused, which is taken on record.  In support of his arguments learned advocate for complainant has relied upon case of Todo and another Vs. The State (2001 P.Cr.L.J 649), Muhammad Imran and others. Vs. The State (2008 P.Cr.L.J 1555), Abdul Ghafoor Vs. The State (PLD 2000 Lahore 59), and Ghulam Rasool and 2 others Vs. The State (1998 P.Cr.L.J 1018).

            Admittedly, the applicant/ accused is nominated in the F.I.R with specific role. During investigation the police has also declared the applicant/ accused as guilty of the offence. It is no argument that any rule of law to the effect that a person who does not cause injuries to the deceased, cannot be burdened with constructive liability at the time of considering the question of bail. The question is essentially one which has to be determined on the basis of facts of each case, available on record at the time when the question of bail come up for consideration. If on the allegation appearing on the record the conditions set out in the provisions of law spelling out constructive liability are made out, then it cannot be said that the accused concerned is not guilty of an offence punishable with death or imprisonment for life. Reference in this regard can be made to the case of Munawar v. The State (1981 SCMR 1092).

            The F.I.R reflects that at the time of incident the present applicant/ accused was available at the place of incident with rifle and he also caused butt blow of his rifle on the head of P.W Juma Khan with intention to commit Qatl-e-amd, such head injury is on vital part of the body and F.I.R shows that after incident all the accused went away by committing aerial firing, prima facie indicates that applicant had facilitated to principal accused for committing the murder of Ali Khan; crime weapon viz. rifle with erased number was also recovered from applicant connecting the applicant in the commission of offence.

            Mere saying that the injury attributed to the applicant/ accused to P.W Juma Khan is simple in nature is of no use at this stage of the case, as in this case one person namely Ali Khan has lost his life.

            Learned counsel for the complainant has filed a statement showing that the applicant/ accused is involved as many as in eight case and according to him, if the applicant is enlarged on bail, he will escape away and will repeat the offence. This fact has been challenged by the counsel for applicant by arguing that mere registration of criminal cases without conviction is no ground to refuse bail.

            Be that as it may, as observed above the name of the applicant is appearing in the F.I.R with specific role of causing injury to P.W Juma Khan on his head through rifle butt which was carrying by him, therefore, his participation in the case is apparent, therefore, under the aforementioned facts and circumstances, the applicant/ accused is not entitled for concession of bail, therefore, his bail application is dismissed. The case law cited by learned counsel for the applicant has been perused and considered but did not find applicable to the facts of the present case.

            However, under the circumstances, it is expected that the trial Court to decide the case as soon as possible, preferably within the period of three months from receipt of this Order and at-least to examine complainant and eyewitnesses within a period of two months and in case the prosecution fails to examine the complainant and eyewitnesses within stipulated period, the applicant would be at liberty to file fresh bail application before the trial Court, which would be decided by trial Court in accordance with law.

            Needless to mention here that, the observations made hereinabove are tentative in nature and would not influence the trial Court while deciding the case.

            Bail application of accused was dismissed on 07.11.2014, and these are the detailed reasons for the same.

                                                                                      Judge