2014 P Cr (PLP)

SHAHNAWAZ TARIQ, J.

Through instant application, the applicant Shahzad Masih has prayed for grant of post arrest bail in case lodged vide Crime No.19 of 2013 at Police Station Mehran, District Mirpurkhas under section 397, P.P.C., as his earlier application for bail was declined by the trial Court of 1st Additional Sessions Judge, Mirpur Khas vide impugned order dated 24-9-2013.

2. Necessary facts out of which the present application has been agitated are that on 1-3-2013 complainant Nazakat Baloch was present at his cabin when at 2350 hours, accused Shahzad alias Sono Masih, Babar Masih, Guddo Masih along with two unknown persons came there duly armed with deadly weapons and robbed Rs.45,000 cash and one Nokia mobile phone from him. Complainant resisted, meanwhile P.Ws. Ashique Masih and Arshad Masih were attracted and on seeing them, accused Shahzad @ Sono made fire from his T.T pistol upon the complainant which crossed through his arm. Thereafter accused persons ran away along with robbed property. The above named P.Ws. took the complainant to Civil Hospital Mirpurkhas, but wherefrom he was referred to Civil Hospital Hyderabad and after his treatment, the complainant appeared at P.S. for report but police did not lodge his report. The complainant filed Criminal Miscellaneous Application No.434 of 2013 before the court of District and Sessions Judge/Justice of Peace, which ultimately was allowed and F.I.R. was registered accordingly.

3. Mr. Noman Sahto, learned counsel for the applicant has contended that applicant is innocent and has been falsely implicated in the case; F.I.R. was lodged with delay of about one month without any plausible explanation. The complainant belongs to Baloch community and Mst. Sadaf, relative of co-accused Babar had contracted marriage with one Liaquat and applicant had restrained her, therefore, complainant being annoyed has lodged false F.I.R. against the applicant, while the applicant was not present at the scene on the date and time of alleged incident and was performing his duty at Karachi and such certificates has been issued. Learned counsel further contended that co-accused Ishtiaque and Babar have been granted bail by the learned Ist Additional Sessions Judge, Mirpurkhas, therefore, applicant is entitled for concession of bail. Learned counsel further contended that no independent person has been cited as witness. In support of his arguments, learned counsel for the applicant has relied upon the case of Faiz Muhammad v. The State (2008 YLR 2023) and Muhammad Nawaz alias Palu v. The State and another (2012 YLR 358).

4. Conversely, Mr. Rana Sohail Mehmood Advocate, who has filed his Vakalatnama today on behalf of complainant, vehemently opposed the bail application and contended that applicant is nominated in the F.I.R. with specific role of committing robbery and causing fire-arm injury to the complainant. He further contended that delay in lodging F.I.R. is very well explained by the complainant that after incident he was taken to the Hospital and remained under treatment, and thereafter upon refusal of the concerned police from lodging of F.I.R., complainant approached the Justice of Peace and through his order the F.I.R. was lodged by the police. P.Ws. have supported the version of the complainant. Learned counsel also submitted that there is sufficient material available on record to connect the applicant with commission of offence, therefore, he is not entitled for concession of bail. Learned counsel contended that role of co-accused, who have been granted bail by the trial Court, is totally different to that of present applicant, therefore, rule of consistency does not apply. He prayed for dismissal of the bail application.

5. Learned Assistant P.-G. adopted the arguments advanced by the learned counsel for the complainant and opposed the bail application. He further contended that the applicant/accused has failed to make out a case for further inquiry and the plea of alibi would be determined by the learned trial Court after recording the evidence.

6. I have heard learned counsel for the parties as well as learned APG for the State and examined the material available on record with their assistance.

7. Admittedly, the applicant is nominated in the F.I.R. with specific role of committing robbery from the complainant by pointing his T.T pistol upon him and also causing fire shot which crossed through his arm, whereby the complainant received injuries and on seeing eye-witnesses, the accused persons fled away. The complainant has also explained delay in lodging F.I.R. by stating that after the incident, he was shifted to Hospital at Mirpurkhas, but considering his condition, he was referred to Civil Hospital Hyderabad where he remained under treatment and after his discharge, he appeared at police Station for registration of F.I.R. but was deprived and consequently he succeeded to achieve his such task after obtaining order from the Justice of Peace. So far the case of co-accused Ishtiaque and Barber is concerned, no specific role is attributed to them in the F.I.R. and mere their presence was shown at the place of incident along with present applicant, therefore, question of rule of consistency does not arise in the present case. The learned counsel for the applicant has also taken plea of alibi and contended that the applicant was performing his duties at Landhi Hospital, Karachi being a sanitary worker on daily wages basis on the relevant date and time. It is well-settled law that while deciding bail application, only tentative assessment of the material available on record is to be made and deeper appreciation is not permissible. Such plea would be determined by the learned trial Court after recording evidence. From the face of record, it appears that there is sufficient material available on record to prima facie connect the applicant with commission of offence.

8. I have also gone through the case-law relied upon by the learned counsel for the applicant as cited supra.

9. In case of Faiz Muhammad (supra), nothing had been robbed despite accused persons were armed with Kalashnikovs, guns, hatchets and lathies, enmity was also alleged with the complainant and accused had been assigned a role of causing lathi injuries to P.Ws. which were declared as Shajjah-e-Khafifah punishable only for two years.

10. In case of Muhammad Nawaz alias Palu (supra), delay of more than one month and 20 days in lodging F.I.R. had not been explained and despite of lapse of more than one year and three months, the trial was not concluded and such delay had not occasioned by any act or omission on the part of accused. No such circumstances exist in the present case, therefore, this case law is not helpful to the applicant.

11. In the present case, robbery of cash Rs.45,000 as well as one Nokia Phone has been made and the applicant has been assigned specific role of committing robbery as well as causing fire arm injury to the complainant which has crossed through his arm, therefore, above cases are distinguishable and narrating the different facts and circumstances.

12. In the case of Ayaz v. The State, 2011 PCr.LJ 177 (Karachi), it has been held that deeper appreciation of evidence cannot be gone into and only it is to be seen as to whether accused is prima facie connected with commission of offence or not.

13. In the case of Muhammad Abbasi v. The State 2011 SCMR 1606, it has been held that mere possibility of further inquiry which exists almost in every criminal case, is no ground for treating the matter as one as under subsection (2) of section 497, Cr.P.C. and it is not possible to release the accused notwithstanding the fact that he is involved in heinous criminal case, particularly, in the case where the eye-witnesses have duly implicated him with the commission of offence.

14. From the tentative assessment of the material available on record, it appears that there is sufficient iota of evidence available with the prosecution to connect the applicant with the commission of alleged offence and bullet injury sustained by the complainant is corroborated by the medical certificate, therefore, applicant has failed to make out a case of further inquiry as envisiged under section 497(2), Cr.P.C. Consequently, applicant is not entitled for extension of concession of bail. Accordingly, instant bail application merits no consideration and same is dismissed. However, the applicant may repeat his application for bail before the learned trial Court after recording evidence of the complainant and both eye-witnesses, and the learned trial Court is directed to adopt all the possible measures to procure the attendance of the complainant and both eye-witnesses namely Aashiq Masih and Arshid Masih and record their evidence within three months without fail. 16(sic.) The observations made hereinabove are tentative in nature and same would not affect the case of either party at the trial. MWA/S-24/Sindh Bail refused.