2005 P Cr (PLP)

RAHMAT HUSSAIN JAFFERI, J.

1. Deferred.

2. Dismissed being infructuous.

3. Granted subject to all just exceptions.

4. This is a murder case of police constable Moula Bux which occurred on 24-12-2003 at 7-00 p.m. at link road leading towards Khuro Sharif. It is alleged that complainant Zahid Hussain, his uncle P.W. Sukhio on one motorcycle and P.W. Nizamuddin and Moula Bux, deceased on other motorcycle were going towards their village when they reached at the place of incident, on the lights of motorcycles, they saw four persons with open faces armed with rifles, pistols and guns. Out of them one person Mahkumuddin was identified who was allegedly armed with gun. The motorcycles were got stopped by the culprits, one of them after seeing the deceased disclosed that he was police constable. The culprit who was armed with pistol flashed torch at them and deceased Moula Bux. The culprit who was armed with rifle fired at deceased Moula Bux who received the injuries and fell down on the ground thereafter the culprits ran away. The complainant went to police station and lodged the report on the same date at 8-15 p.m. The record reveals that on 26-12-2003 the applicant was arrested. On 27-12-2003 he was put to identification test before a Magistrate where P.Ws. Sukhio and Nizamuddin picked out the present applicant to be one of the culprits. The police from the scene of the incident recovered empties of rifle. On 1-1-2004 the applicant produced a rifle before the police. In view of the above evidence the learned trial Court dismissed the bail application of the applicant. The learned Advocate for the applicant has emphasized that the applicant was tortured by the police as on 31-12-2003 one Miskeen relative of the applicant moved application before the Magistrate complaining such torture. On such application Magistrate called the report. On 1-1-2004, the applicant was produced before the Magistrate. He had injuries on his person therefore, the Magistrate referred him to Medical Officer who after examining him found two injuries on his person which were three days old. In this background he has stated that Investigating Officer conducted investigation by means of third degree method and had secured the evidence malafidely as the Magistrate had called the report from the Investigating Officer about the maltreatment of the applicant. He has further stated that the applicant is innocent and has been involved in this case falsely; that the incriminating articles have been foisted on him. He has further stated that co-accused Mahkumuddin who has been nominated in the F.I.R. has been granted bail by the trial Court therefore, the applicant is entitled to the grant of bail. Conversely the learned A.A.-G. has stated that the prosecution has collected sufficient evidence against the applicant to connect him with the commission of the crime; that the injuries on the person of the applicant during his custody is separate offence, it can be dealt with separately and it has nothing to do with the evidence collected in this case. He has strongly opposed the grant of bail. I have given due consideration to the arguments gone through the material available on record and found that the prosecution collected two pieces of evidence against the applicant. (1) identification test through two eye-witnesses Sukhio and Nizamuddin. The identification test was held on 27-3-2003 before the alleged torture upon the applicant. A The said evidence was collected through the Judicial Officer who conducted the identification test where it appears that two witnesses had picked out the present applicant to be one of the culprits. The second piece of evidence against the applicant is recovery of rifle. No doubt this evidence has been collected after the alleged torture. However, this piece of evidence can be examined at the trial when the entire evidence is brought before the trial Court including the evidence of alleged torture on the applicant. It requires deeper appreciation of evidence. At the bail stage only tentative assessment of evidence is required to be conducted. Even if we give some benefit of the recovery of the rifle to the applicant then again still there is evidence of identification test of two eye-witnesses before the Magistrate which connects the applicant with the commission of this crime. After considering the material available on record I am of the considered view that there are reasonable grounds to believe that the applicant is involved in the case and his case falls under the prohibitory clause of section 497, Cr.P.C. therefore, he is not entitled to the concession of bail. The case of the present applicant is distinguishable from the case of co-accused Mahkumuddin. However, the observation made in this order are of tentative in nature. It will not come in the way of the trial Court while deciding the case. The application is dismissed. H.B.T./M-272/K Bail refused.