2007 PLP 204 (YLR)

MUHAMMAD AKHTAR SHABBIR, J.

The petitioner seeks post-arrest bail in case F.I.R. No. 428 of 2004 dated 4-9-2004 registered under sections 302/324/148/149, P.P.C. at Police Station Gulgasht, District Multan.

2. Briefly stated the prosecution story as per the contents of the F.I.R. is that the deceased Muhammad Younas alleged that he is a labourer and on the day of occurrence at about 10-15 a.m. he along with Zahoor Hussain and Imran were coming after attending the date from the Court of Mr. Falak Sher Farooqa, Addl. Sessions Judge, Multan on a rickshaw and were going towards their houses. He alleged that when they reached near Imran Bakers Chowk Rasheedabad, Multan, allegedly Rana Asghar petitioner armed with pistol .30 bore, Rana Muhammad Ismail armed with pistol .30 bore, Ibrahim armed with pistol .30 bore, Rana Irfan alias Aafi armed with pistol along with two unknown persons armed with pistols suddenly came in front of the rickshaw on motor-cycle and stopped the rickshaw. Allegedly Rana Muhammad Asghar petitioner while raising Lalkara made straight fire on the complainant and said, that today the complainant would not be alive. Allegedly other accused persons also started firing on the complainant hitting on different parts of the body of the complainant. Allegedly the accused persons thereafter along with their crime weapons made their escape good on a motor-cycle. The motive behind the occurrence is that the parties- are in litigation over a.case F.I.R. No.159 of 2002 under sections 302/324, P.P.C. registered at Police Station New Multan.

3. The post-arrest bail of the petitioner has been declined by the learned Additional Sessions Judge, Multan vide his orders dated 13-11-2004 as well as on 21-2-2006.

4. Learned counsel for the petitioner contended that two prosecution witnesses who were cited in the Qalandara namely Zahoor Hussain son of Abdul Ghafoor and Muhammad Imran Ali son of Muhammad Ramzan have been given up by the prosecution as having been won over and no other prosecution witness is available on the basis of whose evidence the petitioner could be convicted. Further contended that the complainant died in the hospital on 22-9-2004 after about 18 days of the occurrence. Further contended that as per the post-mortem report the cause of death was secondary haemorrhage the doctor has not opined that the sudden cause of death was the injuries sustained by the complainant at the hands of the petitioner or the other co-accused. Further contended that the petitioner was arrested on 5-10-2004 and the recovery of weapon of offence was effected on 15-10-2004. The crime empties were allegedly recovered from the place of occurrence on 4-9-2004 but were sent very late to the Forensic Science Laboratory. Further contended that the recovery evidence would not be "sufficient" to convict the accused/ petitioner when no ocular evidence is available on the file. Further contended that there is no bar for grant of bail during the trial of the case.

5. While on the other hand, learned counsel for the State as well as the complainant vehemently opposed the grant of bail to the petitioner contending that he is involved in a heinous offence and specific role of causing injuries to the complainant has been attributed to him. Further contended that the recovery of weapon of offence has been recovered from the possession of the petitioner and that the F.I.R. which has been promptly recorded shall be presumed as dying declaration corroborated by the medical evidence would be sufficient to convict the accused person.

6. I have heard the arguments of the learned counsel for the parties and perused the record.

7. It is admitted position that the petitioner is nominated in the F.I.R. He has been assigned specific role of straight firing on the complainant with his .30 bore pistol. The complainant sustained nine injures and remained admitted in the hospital about 18 days in serious condition and as a result of injuries he died due to secondary haemorrhage. There is no evidence on the record that this attack of secondary haemorrhage on the complainant/deceased was not the result of injuries caused to him by the accused persons. The F.I.R. has been recorded by the police officer in the hospital while the complainant has been admitted in the hospital. The learned counsel for the petitioner contended that the statement of the deceased complainant cannot be considered as dying declaration. The statement of the complainant was recorded by Bashir Ahmed S.-I. at about 11-00 a.m. in the hospital. The complainant has sustained more than one fire-arm shot on his person and after receiving those injuries he has made the statement before the S.-I. obviously apprehending his immediate death. The statement on the F.I.R. has been made soon after the incident at the time when the complainant-deceased expected death, therefore, statement recorded in the F.I.R. of the deceased-complainant would be considered as dying declaration. In this context reference can be made to the cases of Zafar Iqbal alias Shahid v. The State (PLD 2004 SC 367) and Farmanullah v. Qadeem Khan and another (2001 SCMR 1474). The weapon of offence .30 bore pistol has been recovered from the possession of the petitioner. The empties cartridges have also been taken into possession from the place of occurrence on 4-9-2004. There is sufficient material on the record i.e. F.I.R. dying declaration of the complainant-deceased, evidence of recovery, medical evidence and the statement of the B Investigating Officer to connect the petitioner with the commission of offence. So far as the defects pointed out by the learned counsel for the petitioner with regard to the late submission of the cartridges and the pistol to the Forensic Science Laboratory. At this stage this Court would not go into the deeper appreciation of the evidence C which is primary duty of the trial Court. The Court should not deliberately attend to the merits of the case when the trial is likely to be concluded in near future lest it might prejudice the merits of the case of either party. Reference in this context can be made to the cases of Allah Nawaz v. The State (2005 PCr.LJ 1785) and Muhammad Nawaz v. The State (2002 SCMR 1381). The learned counsel for the petitioner has not been able to persuade the Court to grant concession of bail to the petitioner.

8. For the forgoing reasons and without prejudicing the merits of the case, this petition being devoid of force is dismissed. S.M.B./M-584/L????????????????????????????????????????????????????????????????????? Petition dismissed.