2013 PLP 74 (YLR)

RIAZAT ALI SAHAR, J.

Applicants Kamal son of Chhalo Chachar and Shaukat son of Pir Bux Chachar involved in Crime No.41 of 2011 of Police Station Buxapur, for offence punishable under sections 302, 337-H(2), 148, 149, P.P.C.

2. The relevant facts of the case are that complainant Nazir Ahmed son of Muhakim Din Bhutto had lodged F.I.R. with Police Station Buxapur, for offence punishable under sections 302, 337-H(2), 148, 149, P.P.C, contending therein that there was a dispute in between complainant and Darya Khan Chachar over the matter of theft. On 20-4-2011 in the morning time, the complainant along with his nephews, Buland Ali, Muhammad Hussain, aged about 22/23 years and Ahmed Ali were going on donkey-cart for taking chaff. It was about 7-30 a.m., when they reached at link road leading towards Badani Town, at Ghulam Mustafa Wazirani turn, 8 persons on their motorcycles came from the back of complainant party, crossing them and stopped their donkey-cart. The complainant and his companions identified those persons to be (i) Darya Khan son of Namal, (ii) Durrani son of Jan Muhammad, (iii) Kamal son of Shalo, (iv)Shaukat son of Peer Bux, (v) Fateh Ali son of Hassan, (vi) Bahawal son of Kamal (vii) Todo son of Peer Bux alias Peeral, all by caste Chachar, along with one unidentified parson; they all were duly armed with Kalashnikovs; accused Darya Khan with intention to kill made straight firing at Muhammad Hussain alias Hussain, which hit him at neck and left side of chest of deceased Hussain; accused Durrani made straight fire, which hit him on his belly; accused Kamal (applicant) made straight fire, which hit him at left side of belly; accused Shaukat (applicant) made straight fire, which hit at right side shoulder of deceased Hussain; accused Fateh Ali made straight fire, which hit him at left side of belly; accused Todo made straight fire, which hit him at his left arm; accused Bahawal made straight fire, which hit him on backside of his chest; and he fell down by raising cry. After that accused Darya Khan also made fire on his back. Thereafter, they ran away by making aerial firing. The complainant noticed that his nephew Muhammad Hussain had expired. He took the dead-body to police station, received letter for postmortem and then went to R.H.C., Buxapur, where postmortem was conducted. After burial and funeral of the dead-body the complainant appeared at Police Station Buxapur and got his report lodged.

3. It is, inter alia, contended by learned counsel for the appellants that the applicants are innocent and have falsely been implicated in the case, all the P.Ws. are close relatives of the complainant, hence they are very much interested and hostile to the accused.; the F.I.R is delayed by 11 hours without plausible explanation, therefore, due deliberation and consultation cannot be ruled out; according to the prosecution story the complainant immediately appeared at police station, but he only obtained the letter for postmortem and failed to disclose the manners of offence; co-accused Fateh Ali, Bahawal and Todo were let-off by the police and their names appear in Column No.2 or report under section 173, Cr.P.C. (challan); lastly he contended that prosecution story shows that multiple fires have been made by the number of accused persons upon the deceased, as to which of those fire proved to be fatal is not clear at this stage, therefore, the question of vicarious liability can only be determined at the time of trial; as such, the matter is one which requires further enquiry. He relied upon the case of Jaffar and another v. The State 1980 SCMR 784.

4. Conversely, the learned State Counsel and the learned Advocate for the complainant opposed the bail application and contended that the incident is of broad daylight, names of the applicants are mentioned in the F.I.R. with specific role of firing at the deceased, recovery of crime weapon was effected from the applicant Shaukat Chachar; the prosecution story is fully supported by medical evidence and the nature of offence is heinous.

5. I have minutely considered the respective arguments of the learned counsel for the applicant, learned counsel for the complainant, learned State Counsel and examined the police record.

6. It is well-settled principle of law that deeper appreciation of the record could not be gone into at the bail stage, but mere tentative assessment is to be made like as F.I.R., statements of P.Ws. nature of the offence, role assigned to the accused, 'mashirnamas' and medical report if any (i) In the present case the prosecution has assigned the role to the applicants during course of commission of offence; (ii) Recovery of crime weapon viz. Kalashnikov is effected from the applicant Shaukat Chachar; (iii) All the P.Ws. have implicated the applicants in their statements; (iv) Recovery of empty shells is effected at the placed of incident; (v) Medical report/postmortem has corro-borated the prosecution version; (vi) Report of police under section 173, Cr.P.C. reveals that some co-accused persons have been let-off by the Investigating Officer, so far the observation of Investigating Officer is concerned, it is neither binding over the Court nor prejudices the case of complainant at bail stage regarding present applicants. Moreover the learned 1st Civil Judge and Judicial Magistrate have joined the co-accused who have been shown in Column (2) vide order dated 11-5-2011; (vii) The case comes within the prohibitory ambit of clause of section 497, Cr.P.C. Reference in this regard can be made to the case of Khalida Bibi v. Nadeem Baig, PLD 2009 SC 440 and Abdul Hayee v. The State 1996 SCMR

555. The case-law cited by learned counsel for the applicants is of no help for the reason that the facts and circumstances of the reported case are distinguishable from the facts and circumstances of the present case.

7. Under these circumstances, I am not inclined to grant the bail to the applicants. This bail application was dismissed by a short order dated 4-7-2012 and above are the reasons in support thereof.

8. The observations are tentative in nature and will not influence the trial Court, in any manner, while deciding the case finally.

9. The learned trial Court is directed to conclude the trial expeditiously. MWA/K-12/K Bail refused.