2005 PLP 310 (YLR)

Habibullah Shaikh for the Complainant. Date of hearing: 19th December, 2002. By this order I propose to dispose of Criminal Bail Application No.607 of 2002 filed on behalf of applicant Nishan alias Nisho Pathan in a case bearing Crime No.102/2002 of Police Station, Ghotki for offence under section 302/34, P.P.C. The bail plea of the applicant was declined by the learned Sessions Judge, Ghotki vide order, dated 31-10-2002. The facts giving rise to the prosecution case are that on 27-5-2002 at 12-15 a.m. Asghar Ali Pathan appeared at Police Station, Ghotki and lodged F.I.R. alleging inter alia that some time back Arbab Pathan and Qadir Bux Pathan were murdered such allegation was levelled by Qurban Pathan and Subhan Ali Pathan against Akhtar Ali brother of complainant. They were giving out that they will kill Akhtar Ali in order to take the revenge of their uncle and father for that episode. On 26-5-2002 as the complainant along with his brother Javaid Ahmed and friend Munawar Ali Khoso came at the Bus Stand Ghotki for going to Karachi and as they were waiting for Coach, at 11-30 p.m. they saw (1) Qurban Ali, (2) Nishan alias Nisho Shah, (3) Jahan alias Shahoo duly armed with Kalashnikov and (4) Subhan Ali alias Babloo were standing there. Nishanr and Shah Jehan pointed their Kalashnikovs whereas Qurban Ali and Subhan Ali took out their pistols from their folds saying that today they will take the revenge of an enmity. At this Qurban Ali and Subhan fired from their respective pistols at Akhtar Ali brother of complainant Asghar Ali which hit him as a consequence whereof he fell down by raising cries. On fire-arm reports and commotion several persons from the vicinity came running by making fires. Akhtar Ali was seen who has sustained injuries on different parts of his body such as back and chest. He was bleeding and had expired. His body was removed to Civil Hospital, Ghotki for post-mortem. Complainant thereafter lodged F.I.R. disclosing that 40/41 years prior to this incident Qurban Ali and Subhan Ali were killed by means of pistol shots and the present incident is outcome of the said enmity. The investigation followed and in due course the applicant was sent-up to stand trial in the Court of learned Sessions Judge, Ghotki. I have heard the learned counsel for the respective parties and perused the record. It has been contended by the learned counsel for the applicant that the case against him is false who has been involved in the background of enmity as suggested in "the F.I.R. It has also been contended that no active part of causing injury is attributed to the applicant excepting facilitating the commission of offence. It has also been argued that the witnesses disclosed in the F.I.R. are interested and hostile to the applicant and' no independent persons were disclosed to have spoken against the accused. Nothing incriminating was alleged secured from the possession of the applicant. Learned counsel in that eventuality argued that it is a fit case where the applicant could be enlarged on bail. He has referred to the following case-law in support of his contention:-- (1) Abdul Rehman v. Javed and 2 others 2002 SCMR 1415, (2) Farzand Ali v. Taj and 2 others 2000 SCMR 1854, (3) Faraz Akram v. State 1999 SCMR 1360, (4) Muhammad v. The State 1998 SCMR 454, (5) Bati Khan v Gulzar and 5 others 1988 SCMR 279, (6) Mumtaz Hussain and 5 others v. State 1996 SCMR 1125, (7) Shafi Muhammad v. State 1999 PCr.LJ 890, (8) Gul Hassan alias Hassan and another v. State 2001 PCr.LJ 1491, (9) Meer Mastoi v. State 2002 PCr. LJ 1952, (10) Nisar Khan and others v. State 1999 PCr. LJ 1884 and (11) Abdul Razaq v. State 2002 PCr. LJ

414. As against the arguments of the learned counsel for the applicant, it has been contended by Mr. Habibullah Shaikh, learned counsel for the complainant that the F.I.R. has been promptly lodged inasmuch as the incident was alleged to have taken place on 26-5-2001 at 11-30 p.m. whereas the F.I.R. was lodged on 27-5-2001 at 12-30 p.m. which is without any loss of time. According to the learned counsel the actual role attributed to the applicant is to the extent of facilitating the crime/abatement which is covered by sections 107 and 109, P.P.C. He further argues that the deceased Akhtar Ali has sustained as many as six injuries being entry and exit. Learned counsel for the complainant has placed reliance on the following case-law in support of his contentions:

(1) Abdul Rehman v. Javaid and two others 2002 SCMR 1415, (2) Munawar v. State 1981 SCMR 1092, (3) Hakim Ali and 3 others v. State 1979 SCMR 114, (4) Muhammad Yousif and another v. State 2002 PCr.LJ 1645, (5) Zahid Shah v. State 2001 PCr.LJ 134, (6) Haji Punhal v. State 2002 PCr.LJ (Larkana) 1701. Mr. Sher Muhammad Shar learned A.A.-G. appearing on behalf of the State adopts the arguments of Mr. Habibullah Shaikh learned counsel for the complainant. I have given my anxious consideration to the arguments of the learned counsel for the respective parties perused the record and feel that argument raised by the learned counsel for the applicant appears to be more weighty in comparison to the arguments of the learned counsel appearing on behalf of the complainant and Sher Muhammad Shar, A. A.-G. By my short order, dated 19-12-2001 I had granted bail to applicant Nishan alias Nisho and these are the reasons for the same. Criminal Bail Application No.607/2002 stands disposed of. H.B.T./N-42/K Bail granted.