2012 PLP 943 (YLR)

IMAM BUX BALOCH, J.

Heard Mr. Muneer Ahmed Bhambhro for the applicant, Mr.Haji Shamsuddin Rajper for the complainant and Mr. Syed Sardar Ali Shah Rizvi, A.P.G., for State.

1. The precise facts of the prosecution case are that on the fateful night complainant along with witnesses after delivery of his deceased wife Mst. Kamal Khatoon returning back to his house where the fateful incident has taken place. The complainant lodged the F.I.R. within one hour with Police Station "A" Section Khairpur mentioning the name of the applicant as one of the accused who fired on the Car in which complainant and his witnesses and his deceased wife were travelling.

2. The learned counsel for the applicant submits that the case is doubtful and no recovery was effected from the applicant after his arrest. He further submits that the medical evidence is conflicting with the ocular evidence. He further submits that co-accused Naseer Ahmed was granted bail by the trial Court and on rule of consistency, the applicant also deserve the same concession. Learned counsel for the applicant has relied on the following Case-Law:-- 2008 PCr.LJ 1578 Javed Iqbal v. The State 2009 PCr.LJ 1085 Anwar Zeb v. Muhammad Riaz and another 2009 PCr.LJ 575 Abdul Sattar and another v. The State

3. On the other hand, Mr.Syed Sardar Ali Shah Rizvi, A.P.G., for the State submits that the name of the applicant did appear in promptly lodged F.I.R. He submits that the complainant after delivery of his wife was returning back to his native place along with his witnesses where the applicant along with four co-accused persons fired upon the Car in order to rob the complainant party. Learned A.P.G. has relied on the case of Ehsan Akbar v. The State and 2 others reported in 2007 SCMR 482 and submits that failure to recover weapon of offence during investigation is no ground for grant of bail and further submits that at the bail stage tentative assessment is to be made and deeper appreciation of evidence is to be avoided under the Law while deciding bail application. He further submits that during investigation, the Investigating Officer has recovered from the place of vardat two empty cartridges of .12 bore, two empty pistol bullets and three empty shells of Kalashnikov. He submits that at the time of incident, the applicant was duly armed with Kalashnikov though during investigation no recovery of Kalashnikov was made but this fact could not be considered at the bail stage.

4. Learned counsel for the complainant has supported the contention raised by the learned A.P.-G.

5. I have considered the submissions advanced at bar and also after going through the case-law relied upon by the learned counsel for the applicant and learned A.P.G. The case of Javed Iqbal, Anwar Zeb and Abdul Sattar (supra) the facts of the above reported cases are distinguishable from the facts of the instant case as in the instant case the complainant has lodged F.I.R. within one hour by mentioning the name of the applicant/ accused as one of the culprit and the witnesses in their statements recorded under sections 161 and 164 Cr.P.C have supported. The version of the complainant. The contention of the learned counsel that the case is doubtful, the same is to be decided by the trial Court after evaluating the evidence adduced by the prosecution. For grant of bail, only tentative assessment of evidence is to be made whereas deeper appreciation is to be avoided, as held in the case of Ehsan Akbar (supra). The applicant was identified at the time of incident by the complainant and his witnesses, the F.I.R. is promptly lodged. The post mortem report also supports the ocular evidence.

6. As regards non-recovery of Kalashnikov from the applicant is not at all a valid ground as empty shells of Kalashnikov were recovered during investigation. Accordingly, the case of the applicant is not of further inquiry as contemplated under section 497(2), Cr.P.C. For the foregoing reasons, I see no merits in this bail application, which is dismissed. M.W.A./I-2/K Bail refused.