2012 P Cr (PLP)

SHAHID ANWAR BAJWA, J.

F.I.R. No.160 of 2010 was recorded at Police Station "B" Section Khairpur on 27-8-2010 at 3-00 p.m. for an incident alleged to have occurred at 1115 hours on the same day. The complainant is a soldier from Medical Unit of Pakistan Army. He stated that deceased Rehmat Ali was an Army man of his Unit. Complainant received information that Rehmat Ali had been murdered. The complainant went to hospital and saw that Rehmat Ali had been murdered by sustaining bullet injury on left side of temple and bullet went through and exited from right side. Incharge ASI Police Post Akhtiar Hussain Siyal and LPC Muhammad Hussain Khaskheli and PC Imtiaz Hussain Maitlo disclosed that they were at Sheesham Colony Khairpur, when they heard fire arm reports and went towards the house of the present applicant where they saw that present applicant armed with T.T. Pistol was trying to come out from the house and they apprehended him and found that in the courtyard of the house one person was lying dead and at some distance in the house one Mst. Ajeeban was found lying injured. The injured woman disclosed that her brother Abdul Hussain Jagirani was in Army and that deceased Rehmat Ali was his friend, who used to visit the house from time to time, whereupon present applicant suspected illicit relations between deceased and Mst. Ajeeban and on material day the present applicant while seeing Rehmat Ali in the house to ok out his pistol murdered Rehmat Ali and injured Mst. Ajeeban. Learned counsel for the applicant submitted that there is only one eye-witness namely Mst. Ajeeban and she has stated in her statement that Rehmat Ali tried to assault her and then he fired upon her and she sustained injuries and thereafter he committed suicide. Learned counsel submits that statement of Mst. Ajeeban was recorded in trial Court and she has not supported version of prosecution and the prosecution has not sought to get her declared hostile. He submits that no statement of persons who gathered there has been recorded. Learned counsel relied upon case of Muhammad Javed v. The State (1999 PCr.LJ 328). Mr. Shayamlal A.P.-G. read from post mortem report and submitted that there is no charring of skin at the point of entry of the bullet and therefore it cannot be presumed that the deceased committed suicide. I have considered the submissions of learned counsel and have gone through the record. In Muhammad Javed case (supra) it was stated in the F.I.R. that S.I.P Muhammad Ashraf received a telephonic message from Head Constable of Police Station New Karachi that a dead body of an unknown person was lying near Ayub Goth. After receipt of this information S.I. Muhammad Ashraf and A.S.I. Raja Abdul Razzaque went to the pointed place and secured the deadbody and sent it for post mortem examination, Post mortem revealed murdered. Deceased was later on identified by brother of the deceased. The brother of deceased moved application to the higher authorities against the applicant alleging the applicant as being responsible for murder of Muhammad Nasir. During investigation besides other thing police recorded statement of Mst. Irshad Bibi wife of the applicant. Her statement was also recorded under section 164, Cr.P.C. The motive was disclosed that earlier the applicant had allegedly seen his wife in naked position with deceased who was also "Humzulf" of the applicant. It was also the evidence that the applicant had disclosed to his wife regarding the murder. A single Judge of this Court observed as under:-- "I have heard quite at length, the learned counsel appearing for the applicant as well as for the State. There is no denial of the fact that the deceased Muhammad Nasir was done to death during night time and there is not a single eye-witness to speak about the incident. The prosecution has relied upon extra-judicial confession, evidence of P.W. Mst. Irshad Bibi, pointation of place of incident to police by the applicant and the motive of "Ghairat". It has not been denied that P.W. Mst. Irshad Bibi did not disclose what she was allegedly informed by the applicant and she kept quiet for 19 days till she was examined by police on 27-12-1997. There is no reason for her delayed 164, Cr.P.C. statement which was recorded on 1-1-1998. Pointing out place of Wardat by the applicant in presence of police mashirs does not appear to be convincing factor when in fact the police had visited the place of Wardat 2 or 3 days before such pointation by the applicant. On all the above pieces of prosecution evidence there is statement of P.W. Mst. Irshad Bibi alone. Even on motive there is none to speak except her." This case is, clearly distinguishable. Firstly because in the present case the applicant has been arrested in the door of applicant house and a pistol used in alleged crime has been recovered from him. Secondly deceased was found along with the woman in the house of the applicant along with the injured women whereas the deceased in reported case was found at a desolate place. Thirdly there is no injury on Irshad Bibi in the reported case. Fourthly the deceased sustained injury on left side of temple and the bullet went through from right side. Moreover there is no charring on margins of entry wound. No doubt Mst. Ajeeban has given statement before the trial court and no application has been moved by the prosecution for declaring her hostile, there is other evidence with the prosecution and thereafter it not yet the stage to weigh the evidence. Result of the above discussion is that this bail application is dismissed. Office is directed to send a copy of this order to learned Prosecutor-General Sindh for his information. M.W.A./W-2/K Bail refused.