2009 P Cr (PLP)

ABDUL RASHEED KALWAR, J.

The applicant seeks bail in case vide Crime No.4 of 2007 under section 302, 34, P.P.C. registered at Police Station Mahi Otho, District Jamshoro. Brief facts of the prosecution case as disclosed in the F.I.R. are that complainant Gul Hassan son of Abdul Rehman by caste Otho had lodged the above mentioned F.I.R. on 18-2-2007 at 0700 hours in respect of an incident having taken place on same day at 0645 hours. Through this F.I.R., the complainant has 'brought on record the facts of incident that he is police constable and at the night time he was on his duty as incharge of Police Picket Karampur. On the day of incident at about 5-00 a.m. he was free from his duty and thereafter he proceeded to his village Karampur from Sehwan on a motorcycle. Wherefrom he, his brother Ghulam Hussain aged about 25 years, Ghulam Rasool and maternal-uncle Shah Muhammad proceeded to their lands situated at Kand Sahita. At about 6-45 a.m. they reached at Jiandal Shah graveyard near protective band road. They saw a white coloured car standing there. Accused Abdul Raheem, Allah Bux, both sons of Muhammad Hassan; Mola, Bux son of Abdul Rahim, all by caste Rind resident of Bodlo Bahar Mohalla, Sehwan and Abdul Khalique son of Jalaluddin by caste Rahejo, alighted from the vehicle. Out of them Abdul Raheem had rifle, Allah Bux had rifle and Abdul Khalique had pistol in their hands. As soon as the accused went closer to them, the accused persons raised Hakals and declared that it was their last day because the complainant party had killed their man, thereupon they, declared their intention to kill the complainant party. Abdul Raheem with his own rifle directly fired upon the brother of complainant Ghulam Hussain which hit him on his head: Ghulam Rasool and complainant's uncle Shah Muhammad took refuge behind the Blind. Within the sight of complainant party, Allah Bux fired from his pistol directly upon the complainant's brother Ghulam Hussain which hit him on navel. He fell down. Moula Bux and Abdul Khalique went to Ghulam Hussain and fired from their weapons upon Ghulam Hussain lying on the ground which hit him on head. After accomplishment of their mission, the accused raised slogans and decamped in same car on a road proceeding towards Tulti. The complainant party found that Ghulam Hussain had sustained fire-arm injuries, one on navel, two on right side above forehead and two on head at left temple side of the ear. Blood was oozing out from injuries and Ghulam Hussain had expired. The complainant leaving Ghulam Rasool and Shah Muhammad over the dead body, went to police station and lodged the F.I.R. The applicant had moved bail application before the Court of Sessions Judge, Sehwan which was dismissed vide order, dated 23-7-2007. Learned Advocate for applicant states that co-accused Abdul Rahim was let off by the police and applicant having similar role with co-accused Abdul Rahim, is entitled for bail as a matter of equality and consistency. There is admitted old enmity between the complainant party and the accused party. In F.I.R. three persons i.e. Abdul Rahim, Moula Bux and Abdul Khalique had fired upon the head of deceased Ghulam Hussain, whereas as per post-mortem report deceased had received only two fires on his head and face. It is not clear as to whose bullet had hit the deceased, therefore, the matter requires further inquiry. The story is improbable. All the members of same family have been roped by the complainant in a false criminal case due to enmity. He has relied upon PLD 1988 SC (AJ&K) 14, 1997 PCr.LJ 1578 and 1999 PCr.LJ

184. Learned State counsel has vehemently opposed the bail plea on the ground that applicant has been nominated in F.I.R. with specific role of causing fire-arm injury on the head of deceased. P.Ws. have fully implicated the applicant in their 161, Cr.P.C. statements. The applicant is saddled with the liability of causing fatal injury to the deceased. No deeper appreciation of evidence is permissible at bail stage. Case of further inquiry is not made out. The cited case-laws have no application under the present circumstances of the case. The bail application is liable to be dismissed. From the perusal of case papers and the contentions raised by the learned applicant's counsel and learned State Counsel, it is clear that deceased had died due to injuries received by him by discharge of fire-arm. The deceased had also received fire-arm injuries on head/face which is supported by the ocular evidence as well as the post-mortem report. The injuries received by the deceased were sufficient to cause his death and thereby he died too. After letting of co-accused Abdul Rahim, the number of injuries sustained by the deceased commensurate with the number of accused who fired upon the deceased. Deeper appreciation of evidence is not permissible at bail stage. Enmity can be motive for commission of offence. Presence of applicant on spot along with other co-accused has been tentatively established from prosecution record. The case-laws cited by the learned applicant's counsel are distinguishable with the circumstances of the present case. Case of further inquiry into the guilt of applicant/accused is not made out. Under the circumstances, the applicant was not found entitled to bail hence his bail plea was dismissed vide short order, dated 28-11-2008 and these are the reasons. H.B.T./M-233/K Bail refused.