2010 P Cr (PLP)

KHADIM HUSSAIN M. SHAIKH, J.

Through this application, applicants Safdar Ali and Sabir Ali both sons of Chakar Khan Marri sought post-arrest bail, in Crime No.27 of 2007, for offences under sections 302, 114, 34, 337-11(2), P.P.C. registered with Police Station Civil Line, Larkana.

2. The brief facts as narrated in the F.I.R. lodged by complainant Muhammad Panah Marri, are that there was murderous enmity between the complainant party and Peeral Umrani and despite such "Faisla" Peeral and others were annoyed with the complainant party. On the fateful day that is to say 1-5-2007, complainant, his cousin Imdad Ali Marri, his son Sher Jan and his cousin Barkat Ali were standing opposite Al-Zahid Hotel near 'Lahori Regulator, when at about 9-15 p.m. four persons came there on two motorcycles and they identified them to be Peeral armed with gun, Mehar Ali, Safdar Ali and Sabir Ali, who all took out pistols from folds of their trousers. Accused Peeral pointing his gun towards the complainant party instigated other accused to kill Imdad Ali. Accused Mehar Ali fired his pistol at Imdad Ali, which hit him, accused Safdar Ali and Sabir Ali also fired upon Imdad Ali, which also hit him and the accused also made firing in the air, which resulted injuries to a passerby, who raising cry fell down. Then all the accused riding on their motorcycles went away towards southern side of the bridge. Thereafter, the complainant saw Imdad Ali was dead, having injuries on his face, neck and chest. At some distance one person was lying injured, he was having fire-arm injuries. On enquiry he disclosed his name to be Javed Ali son of Jan Muhammad. The complainant with the help of witnesses shifted them to C.M.C. Hospital Larkana. Thereafter, leaving the witnesses to guard over the dead body, the complainant appeared at Police Station Civil Line, Larkana and lodged his above F.I.R.

3. The applicants were arrested and after investigation they were sent 'up with the challan and the names of co-accused Peeral and Mehar Ali were placed in Column No.2 of the challan. The order dated 18-10-2008, reveals that co-accused Peeral and Mehar Ali whose names were placed in Column No.2, of the challan were joined by the learned Magistrate concerned vide his order dated 18-5-2007.

4. The bail plea of the applicants was declined by the learned Court of 4th Additional Sessions Judge, Larkana, vide order dated 18-10-2008 hence this bail application.

5. Learned. Advocate for the applicants has mainly contended that applicants have been implicated in this case due to old enmtity between the complainant and the accused party, that co-accused Peeral and Mehar Ali were let off by the police and therefore, the applicants are entitled to the grant of bail. He placed his reliance upon the case of Sooban v. The State 2003 YLR 2029, Muhammad Azam v. The State 2008 SCR 249 and Shahnawaz and others v. The State 2008 SCMR 1436.

6. Mr. Muhammad Akram Shaikh, learned State Counsel has opposed the bail plea of the applicants, stating that there is sufficient evidence against the applicants for their involvement in this crime.

7. I have carefully considered the arguments of both the counsel and have also gone through the material placed before the Court with the assistance of learned State Counsel, I find that names of both the applicants appear in the F.I.R. and they were assigned specific role of causing fire-arm injuries to the deceased Imdad Ali, the medical evidence is in line with the ocular evidence, eye-witnesses Sher Jan and Barkat Ali have implicated the present applicants, the crime weapons namely two pistols with loaded magazines, each containing five live bullets were recovered from the possession of the applicants, three empties of .30 bore pistol were also secured from the place of incident, therefore, there is prima facie sufficient incriminating evidence against applicants to connect them with this crime of murder. So far the releasing of co-accused Peeral and Mehar Ali is concerned, it is an admitted position that they were implicated by the complainant and prosecution witnesses namely Barkat Ali and Sher Jan, both the said co-accused Mehar and Peeral have since been joined to face their trial by the Court of competent jurisdiction. The case-law relied upon by the learned counsel for the applicants is distinguishable from the facts of the present case, as in case of Sooban v. The State (supra) the bail was granted to the applicant mainly on the ground of non-compliance of the earlier directions given to the trial Court for early disposal of the case while disposing of his previous bail application by the High Court, in the case of Muhammad Azam v. The State (supra), four accused including the petitioner were found innocent and all the said three co-accused were already released on bail and the apex Court granted bail to the petitioner only on the ground that the case of petitioner was at par with the case of co-accused and whereas in the case in hand the applicants were found involved during investigation and were sent up with the challan to stand their trial and in the case of Shahnawaz and others v. The State (supra) the apex Court granted bail to the applicants Yaqoob and Younus, who allegedly caused Sota injuries on the left arm, left leg and clavicle of the deceased and whereas the apex Court dismissed the Criminal Petition No.107 of 2005, filed by accused Shahnawaz who was assigned role of causing injury on skull of deceased by means of sharp cutting weapon like dagger, and in the present case the applicants were assigned role of causing fire-arm injuries to deceased Imdad Ali, the post-mortem report of deceased Imdad Ali reflects that there were three fire-arm injuries all with entry and exit holes, on the person of deceased Imdad Ali, and the doctor who conducted the autopsy has opined that all the injuries collectively as well as individually were sufficient to cause death of deceased in ordinary course of nature.

8. In view of what has been-discussed above I am of the considered opinion that the applicants Safdar Ali and Sabir Ali have failed to make out their case for grant of bail, and as such their bail application was dismissed by a short order dated 27-3-2009 and these are the reasons for the same.

9. The observations made hereinabove are tentative in nature for the purpose of only disposal of bail application, the same shall not influence the mind of the learned trial Court while deciding the case. H.B.T./S-96/K Bail refused.