2023 P Cr (PLP)

ABDUL MAALIK GADDI, J.

Having remained unsuccessful in obtaining his release on bail from trial Court in Crime No.10 of 2018, registered at Police Station Ketti Bunder, under sections 302/324/ 147/148/149/114 and 504, P.P.C. Now the applicant Usman alias Osso son of Abdullah is seeking his release on bail in the said crime through instant bail application.

2. The allegations against the applicant/ accused is that on 20.02.2018 at about 1630 hours, in front of house of complainant situated at Village Sajanwari, Taluka Ketti Sunder, District Thatta, present applicant along with four other persons formed an unlawful assembly and in prosecution of their common object of such unlawful assembly, applicant fired at Hafeez son of Muhammad Sulleman, who fell down and died at spot.

3. Messrs Muhammad Ramzan and Nisar Ahmed, learned counsel for applicant contended that applicant is innocent and has been falsely implicated by the complainant in this case due to ulterior motive; that there is thirty (30) hours delay in registration of FIR without any explanation; that applicant side had also lodged FIR being FIR No.11 of 2018 of same police station and these cases are of counter version arising from same incident, one given by the complainant in FIR No.10 of 2018 and other given by the applicant side in FIR No.11 of 2018 and both the side during this incident received the injuries, therefore, question as to which party was aggressor and which party was aggressed upon is a legal ground for further inquiry; that according to FIR, present applicant fired at Hafeez and there is no allegation of repetition of fire attributed even to any of the other accused; that as per memo of arrest and recovery four empties of pistol were recovered and according to FSL report, out of them, only one empty matches with the pistol allegedly recovered from possession of applicant/accused, thus, recovery of empties also makes a case of further inquiry; that co-accused Majeed son of Ismail has already been granted bail in Crime No.11 of 2018 of Police Station Ketti Bunder, therefore, under these circumstances, this applicant is also entitled for same relief and in support of his arguments, learned Counsel has relied upon following case laws:- i. Ghulam Abbas alias Gaman and others v. The State and others reported in 2017 SCMR 1730; ii. Abdul Hameed v. Zahid Hussain alias Papu Chaman Patiwala and others reported in 2011 SCMR 606; iii. Muhammad Shahzad Siddique v. The State and another reported in PLD 2009 Supreme Court 58.

4. Conversely, Mr. Siraj Ali Khan, learned Additional Prosecutor General, Sindh, assisted by Mr. Muhammad Ashraf Sammo, learned Counsel for complainant, has vehemently opposed this bail application on the ground that place of incident was just in front of house of complainant in the instant case. C.T. scan of Shahmir was conducted which confirmed injuries to him; that allegation against present applicant is that of direct firing at deceased Hafeez at vital part of his body, which is supported by medical evidence and that such injury caused his death; that the relevant column of charge sheet very much shows that empties of 9mm pistol were recovered from the spot, one of which was fired from the pistol recovered from possession of present applicant which according to FSL report was in working condition at the time of its examination; that accused Majeed was granted bail in crime No.11 of 2018 on different ground. Hence, prayed for rejection of bail.

5. I have heard the learned counsel for the parties at considerable length and have gone through the material, so made available before me.

6. It is noted that alleged incident took place on 20.02.2018 at 1630 hours, whereas, the same was reported on 21.02.2018 at 2045 hours, apparently, there is no delay in lodging of FIR. Delay, if any, has also been properly explained by the complainant. It is pointed out by learned Additional Prosecutor General, Sindh that in this matter, trial Court has recorded the examination-in-chief of complainant Mst. Haleema, PW Shahmir and PW Muhammad Jumman, but according to him, these witnesses are not being cross-examining by the applicant's Counsel, therefore, according to him, delay, if any, in conclusion of trial, is on the part of applicant. It appears that on the one hand, applicant is seeking bail and on the other hand, he is adopting delaying tactics in conclusion of trial, which is not warranted under the law. It is settled law that he who seeks equity must do equity. Equity moves in the aid of law and not to defeat the law.

7. It is also noted that on the relevant date and time, present applicant along with four other persons formed an unlawful assembly and in prosecution of their common object, applicant fired at Hafeez son of Muhammad Sulleman (deceased) at his chest, who fell down and died at spot. This incident has been witnessed by complainant and prosecution witnesses as mentioned above. Since there is direct allegation against the present applicant for causing fire arm injury to the deceased. The assertion of complainant has also been find supported by medical evidence on record. Nothing on record that complainant has any ill will with the applicant. Police papers shows that investigating officer during investigation, has collected sufficient material against the applicant, therefore, in view of the above, present applicant has failed to make out his case for grant of bail. As far as, grant of bail in favour of other accused is concerned, the same were granted by the trial Court on different facts.

8. Since three prosecution witnesses have been partly examined by the trial Court, therefore, the question as to which party was aggressor and which party was aggressed upon, if discussed at his stage, would amount to deeper appreciation of evidence, which is not permissible under the law. Even otherwise, mere filing of cross cases against each other could not be a ground for grant of bail automatically, unless element of genuineness was there. Nothing was on file in the present case to show that cross case was ever filed at the instance of accused. Plea of cross case in the circumstances is not available to accused. Since sufficient material is on record to indicate that accused had specifically participated in the firing which resulted in death of deceased (Hafeez). We have also gone through the case of Nasir Muhammad Wassan and another v. The State reported in 1992 SCMR 501, wherein it has been observed that merely because there were cross FIRs or cross cases registered by both parties against each other, it could not be a ground for grant of bail as further inquiry.

9. In view of the above, this bail application merits no consideration, which is hereby dismissed. However, trial Court is directed to proceed the matter expeditiously and decide the same as early as possible as per law. The case laws cited by learned counsel for applicants in support of his contention have been perused and considered by us but do not find applicable to the facts of the 'resent case, therefore, the same are not helpful for him. Even otherwise, the precedents in bail matters are of no help to a party as it varies from case to case depending upon the facts and circumstances of each case. Reliance in this respect is placed in the cases of The State v. Haji Kabeer Khan reported in PLD 2005 SC 364 and Muhammad Faiz alias Boora v. The State and another reported in 2015 SCMR 655.

10. Before parting with this order, I would like to mention here that observation, if any, in this order is tentative in nature and shall not effect the merits of the case. Office is directed to send the copy of this order to the trial Court through some swift means. JK/U-7/Sindh Application dismissed.