ORDER SHEET
IN THE HIGH COURT OF SINDH, CIRCUIT COURT, LARKANA
Cr. Bal Appln. No.S-78 of 2014
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DATE OF HEARING |
ORDER WITH SIGNATURE OF HON’BLE JUDGE |
15.12.2014.
For Hearing.
Mr. Asif Ali Abdul Razak Soomro, advocate for the applicant.
Mr. Muneer Ahmed Abbasi, D.D.P.P. for the State.
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ABDUL MAALIK GADDI, J.- Having remained unsuccessful in obtaining his release on bail from trial Court in Crime No.95/2011, registered under Sections 302, 148 & 149, PPC, at Police Station Hyderi, Larkana, applicant/accused Ali Bux is seeking his release on bail through instant bail application.
2. The case of prosecution as per F.I.R. lodged by complainant Hussain Bux Meerani is that because of an old enmity with Dahani community over picking of the mangoes about 25/30 years back two relatives of complainant, namely, Muhammad Saleem and Muhammad Ibrahim were murdered, in that case accused Soobo and others were convicted, thereafter on account of that enmity again relatives of complainant, nekmard Muhammad Malook, Muhammad Ali, Ghulam Nabi and Muhammad Nabi were murdered in morning of Eid-ul-Fitr and accused were further threatening to commit murders of Miranis, therefore, the complainant party did not pursue that case properly, hence accused were acquitted and they were threatening to migrate from their village otherwise they would be murdered. It is further stated in the F.I.R. that son of complainant namely Nisar Ahmed aged about 25 years used to come to learn shorthand at Larkana and his relative Waheed Ali aged about 26 years also used to purchase material for his shop from Larkana, on 22.7.2011 they had come to Larkana and complainant alongwith Muhammad Ayoub and Muhammad Punhal also came to Larkana at about 7.30 p.m., they came at Naudero Chowk, where said Nisar Ahmed and Waheed Ali also came and when complainant party was waiting for conveyance, meanwhile two cars appeared from Aqil road, from one car accused Badal, Hadi Bux, Tehmoor, Atta and from other car accused Ali Bux, Rasool Bux, Samano and two unidentified got down, who took pistols from their folds and encircled the complainant party in two groups, thereafter accused Badal, Hadi Bux and Tahmoor made straight fires upon son of complainant namely Nisar Ahmed with intention to commit his Qatl-i-Amd who received two firearm injuries and fallen down, while accused Atta Muhammad, Ali Bux and two unidentified made fires from their pistols with similar intention upon Waheed Ali, who on receiving firearm injuries also fallen down and the fires of accused party also hit to their own companion Rasool Bux and Samano, who also fallen down, however other accused took them in their cars and went away, complainant saw that Nisar Ahmed and Waheed Ali had received firearm injuries and expired on the spot, so also the blood was oozing, complainant left other P.Ws to look after the dead bodies and came to police station. Thereafter with the help of police the dead bodies were taken and after their postmortem complainant brought them to village and after their funeral ceremony came to police station where complainant came to know that the F.I.R. of murder case of Rasool Bux and Samano Dahani has been lodged, thereafter he obtained orders from Honourable High Court of Sindh, Circuit Court, Larkana on 29.7.2011, hence his F.I.R. was lodged for offence under section 302, 148, 149, PPC.
3. I have heard learned Counsel for the applicant/accused, learned D.D.P.P for the State and have gone through the papers made available before me.
4. Mr. Asif Ali Abdul Razak Soomro, learned Counsel for the applicant, contended that the applicant has been falsely implicated in this case due to old murderous enmity between the parties, which itself is admitted in the F.I.R. He further contended that there is delay of 07 days in lodging the F.I.R, for which no plausible explanation has been furnished. He contended that so far deceased Nisar Ahmed is concerned, the applicant is not alleged to have fired at him. So far deceased Waheed Ali is concerned, as per F.I.R. the present applicant, co-accused Atta Muhammad and two unidentified accused persons fired pistol shots at deceased Waheed Ali, son of the complainant and as per postmortem report of deceased Waheed Ali shows that he received two injuries on his person, therefore, the learned Counsel raised threefold contention that there is conflict between the medical and ocular versions and it is not clear as to whose shot hit deceased Waheed Ali, which proved to be fatal, as such, the applicant cannot be held vicariously liable for the commission of murder of said deceased. He further contended that question of sharing common intention is a question to be determined after recording evidence at trial. He also contended that there is counter-version of the instant F.I.R. in shape of crime No.91/2011 lodged by the applicant/accused against the complainant party, therefore, the case against the applicant requires further enquiry. In support of his contentions, learned Counsel has placed reliance on the cases of Syed Amanullah Shah v. The State (PLD 1996 Supreme Court 241), Syed Abdul Baqi Shah v. The State (1997 SCMR 32), Shafi Muhammad v. The State (2002 P.Cr.L.J 494) and case of Muhammad Akram v. The State (2002 P.Cr.L.J 480).
5. On the other hand, learned D.D.P.P vehemently opposed the bail application and contended that the applicant is nominated in the F.I.R. Specific role of firing at deceased Waheed Ali is attributed to him, which tentatively finds support from the postmortem report of the said deceased. He further contended that the enmity is double-edged weapon, which cuts both ways, hence applicant cannot claim false implication on account of such enmity, the complainant has explained the delay in lodgment of F.I.R satisfactorily and in view of the active role of firing at the deceased Waheed Ali, the applicant is vicariously liable for committing murder of the deceased. He lastly contended that in this incident two innocent persons have lost their lives at the hands of accused party, therefore, the applicant is not entitled for grant of bail.
6. Perusal of the F.I.R shows that the applicant is nominated in it. Specific role of firing at deceased Waheed Ali son of the complainant is attributed to him. Learned D.D.P.P is right in contending that the enmity is double-edged weapon, which cuts both ways, therefore, contention of the learned Counsel that the applicant has been implicated on account of such enmity at this stage is devoid of force. So far as the ground of delay in lodgment of F.I.R is concerned, it is well settled principle of law that the delay per se is no ground for grant of bail if from the facts and circumstances of the case there appears prima facie involvement of the accused. The applicant has actively participated in the commission of the offence. No doubt, the applicant has not fired at deceased Nisar Ahmed, but the active role of making fire at deceased Waheed Ali is assigned to him, which is duly corroborated by the postmortem report of deceased Waheed Ali. So far contention of the learned Counsel that four persons including the present applicant are alleged to have fired at deceased Waheed Ali, where as per postmortem report there are only two firearm injuries on his person, it may be mentioned here that at this premature stage it would be wholly immaterial to hold as to whose shot proved fatal and deeper appreciation of evidence at bail stage is not permissible under the law and only tentative assessment of the material on record is to be made. Reliance in this regard can be placed on the case of Haji Gulu Khan v. Gul Daraz Khan & others, reported in 1995 SCMR 1765, wherein it was held by the Hon’ble Supreme Court as under :-
“In the case before me, respondent No.1 is specifically charged with the firing from his arms alongwith the absconding accused on the deceased, both in the F.I.R. as well as in the statements of witnesses recorded under sections 161 and 164, Cr.P.C. The fact that in the F.I.R. and in the statement of prosecution witnesses there is only general allegation of firing by the respondent No.1 and the co-accused on the deceased and no specific injury on the deceased is attributed to respondent No.1, would not make the case against him, one of further inquiry as held by this Court in the case of Shahzaman and 2 others v. The State and another (PLD 1994 SC 65) as follows :-
“Section 497(2), Cr.P.C. provides that if it appears to the Court at any stage that there are no reasonable grounds for believing that accused committed a non-bailable offence, but there are sufficient grounds for further enquiry into his guilt, such accused shall be released on bail. Now what will constitute as sufficient grounds for further enquiry, would depend upon peculiar facts of each case and no hard and fast rule can be laid down for that purpose. Every hypothetical question which can be imagined would not make it a case of further enquiry simply for the reason that it can be answered by the trial Court subsequently after evaluation of evidence. Broadly speaking the condition laid down in clause (2) of Section 497, Cr.P.C. is that there are sufficient grounds for further enquiry into his guilt which means that the question should be such which has nexus with the result of the case and may show or tend to show that accused is not guilty of the offence with which he is charged. For example if accused is charged for offence under section 302, PPC, but there are grounds for further enquiry which may show that he may not be convicted of charge under section 302, PPC and acquitted or convicted for a lesser offence. In the instant case, the fact that in F.I.R. it is not pinpointed as to which appellant had what weapon and who caused the fatal injury, would not alter the charge on conviction if prosecution evidence is believed and may have some effect only on the quantum of sentence.”
7. It is reiterated here that in the case in hand the applicant is named in the F.I.R with specific role of firing at deceased Waheed Ali son of the complainant, which is fully supported by the P.Ws in their 161, Cr.P.C statement, therefore, at this stage it is immaterial to find as to whose shot proved fatal. From the tentative assessment of material collected by the prosecution, it appears that there is sufficient material on record to prima facie connect the applicant with the commission of the offence, which involves capital punishment, as two innocent persons have lost their lives in the incident.
8. The case law cited by learned Counsel for the applicant has been perused and considered by me, but did not find applicable to the facts of present case.
9. In view of above facts and circumstances, in my view, the applicant has no case for grant of bail. The bail application is, therefore, dismissed. However, the learned trial Court is directed to examine the material witnesses as early as possible, whereafter the applicant shall be at liberty to file bail application on any fresh ground before the trial Court, if occurred and the learned trial Court shall decide the same on merits.
10. Before parting with the order, it may be mentioned here that the observations made hereinabove are only tentative in nature and will not affect the case of either party at trial.
11. The bail application was dismissed on 15.12.2014 by short order in open Court and these are the reasons thereof.
JUDGE
Qazi Tahir/*