2001 PLP 2021 (YLR)

Hidayatullah Abbasi for the Complainant. Ali Azhar Tunio, Asstt. A.-G. for the State. Date of hearing; 14th December, 2000. The application for grant of bail to applicant Ahsan Mian Unar involved in Crime No. 104 of 1999 registered at Police Station Qazi Ahmed under sections 302, 324, 109 and 34, P.P.C. is being disposed of by this order. Succinctly the facts of the case as per F.I.R. lodged by complainant Ajiaz Ali Shah en 16-9-2000 at 5-10 p.m. are that about 6 months-back the accused Ahsan Mian and others had fought with his brother Qamil Shah and the F.I.R. of that incident was got registered by them against Ashan Mian and others. Due to which they are not on talking terms with accused party. On the date of occurrence at noon time complainants cousin Zulfiqar Shah, and one Shahid Mian the brother of accused Ahsan Mian had exchanged hot words. At about 4-30 p.m. while complainant was sitting in his bungalow that he received a telephone from Raees Sher Muhammad warning him that since they were getting the cases registered against them (the accused party) and want to equate with us and if the complainants lodge the case they will see the result very soon. He' further stated in the F.I.R. that on that day while the complainant, his brother Qamil Shah and cousin Zulfiqar Ali Shah alongwith Shah Muhammad and Muhammad Ramzan Khashkeli were sitting in front of their bungalow that one Alto Car appeared and stopped in front of their bungalow. That car was being driven by Zulfiqar Unar while accused Ahsan Mian was sitting by his side on the front seat with Kalashnikov. Iftikhar Unar having Mouser and Mumtaz Dahri armed with 30 bore Pistol were sitting on the rear seat of the Car. When the car stopped Zulfiqar said that they are sitting and shall be killed. On this applicant Ahsan Mian fired from his Kalahsnikov at Zulfiqar Ali Shah which hit him who raised cry and fell down and said Ahsan Mian killed him. According to complainant Iftikhar Unar and Mumtaz Dahri also fired at them with intention to commit murder but they saved themselves by falling on the ground. On hearing the firing people gathered there. Zulfiqar Shah sustained fire-arm injury on left side of his chest which has passed through and through. He was severely injured and taken to Qazi Ahmed Hospital where he died at about 5-00 p.m. Accordingly the F.I.R. was lodged. The bail application moved on behalf of applicant Ahsan Mian was dismissed by the learned Sessions Judge, Nawab Shah vide order, dated 25-9-2000. I have heard Mr. Qurban Ali Chuhan learned counsel for the applicant. Mr. Ali Azhar Tunio, Assistant A.-G. and Mr. Hidayathuallh H. Abbasi, Advocate for the complainant and perused the police papers and material available on record. Learned counsel for the applicant contended that in all five persons were shown as accused persons in the F.I.R. out of which three have been dropped. He submits that a solitary bullet cannot be fired from the Kalashnikov. According to him the F.I.R. as well as the post-mortem report shows only a single injury having been caused to the deceased. He further contended that there is allegation of indiscriminate firing but no one else from the P.Ws. sustained a single injury as nobody was hit excepting the deceased. According to learned counsel for the applicant the allegation in the challan is not specific but only general and vague. Learned counsel contends that a tentative appreciation of evidence can be made at the stage of bail and that the bail should not be withheld as a matter of punishment. He further contends that there is a conflict between post-mortem report and the ocular evidence. He, therefore, submits that the involvement of the applicant is doubtful and calls for further inquiry, and therefore, according to him, the applicant is entitled to the concession of bail. In support of his above submissions he has relied upon the authorities reported in 1994 SCMR 717, 1998 SCMR 441 1982 SCMR 955, 1997 PCr.L1 1578, PLD 1985 Kar. 27, 1989 SCMR 1987, 1997 SCMR 251, PLD 1972 SC 81, NLR 96 (CR) 188, 1996 SCMR 1845 and 1997 SCMR

22. Learned Assistant A.-G. has supported the case of applicant and has raised no objection to the grant of bail to the applicant. Learned counsel for the complainant submits that there is no conflict between the medical report and the ocular evidence. He submits that the recovery of the empty of 22 bore rifle has been shown alongwith the empties of different weapons in the mashinrama. He submits that because the investigation in this case was dishonest, therefore, the application under section 193, Cr.P.C. has been moved before the trial Court for taking cognizance of the offence against the persons who have been let off by the police and joining them as accused and the said application is pending before the Court. He further submits that the allegations in the challan are very specific and not vague as contended by the learned counsel- for the applicant. He submits that the deceased was actually hit by the bullet fired by the applicant as such he was not entitled to bail. I have given my anxious consideration to the contention raised by the' learned counsel and have also minutely perused the material available on record. The perusal of the F.I.R. shows that it was lodged instantly without any delay, the motive for the murder has also been explained in the F.I.R. Admittedly -there was enmity and on that very day the altercation has taken place between the deceased and the brother of the assailant. The version given in the F.I.R. shows that the commission of the offence was premeditated in which the accused persons duly armed came at the place of occurrence which is admittedly in front of the bungalow of the deceased person. P.Ws. have fully implicated the present applicant, there is absolutely no conflict between medical evidence as well as ocular version given in the F.I.R. I feel that the contention of the learned counsel for the applicant that a single bullet cannot be fined from the K.K. is misconceived. From the perusal of the Mashirnama of Wardat it is quite clear that there were 5 number of empties of '222 rifle and 4 empties of 30 bore pistol which were secured. The words uttered by deceased after having sustained bullet shot are enough to prima facie implicate the present applicant/Accused. The deceased after receiving the injuries uttered the following words: [Ahsan Mian has killed (me)] There is absolutely no cavil to the proposition that while deciding bail application tentative assessment of evidence can be made by the Court. It is also equally settled law that bail should not be withheld as a matter of punishment. However when after tentative assessment of the evidence available on record the Courts come to the conclusion that there are reasonable grounds to believe that the accused has been guilty of offence punishable with death or imprisonment for life or imprisonment for 10 years he shall not be released on bail. With due respect and regard to the authorities cited by the learned counsel for the applicant I am of the humble view that the same are not applicable in the facts and circumstances of the present case. Since no facts of two criminal cases were always alike and thus, each case is to be dealt with on the basis of its peculiar facts and circumstances. In this regard reference can be had to the case of Sarwar Sultan v. The State reported in PLD 1994 SC 133, wherein it was held as under:

"It is thus clear that the principles of law laid down are same, which are to be applied but since facts of two criminal cases are net the same and each case is to be decided or for that matter, bail matter in that case is to be heard and decided keeping in view peculiar facts of the case and for that reasons the conclusions may wary. The most important criterion is that it is the mind of the Court which is to be satisfied that the case under its consideration is fit case or not for grant of bail in line with guidelines covering legal requirements." Accordingly no case for grant of bail is made out. These are the reasons for the short order, dated 14-12-2000, whereby the bail application was dismissed. H.B.T./A-221/K Bail application dismissed.