2015 PLP 829 (YLR)

FAROOQ ALI CHANNA, J.

Applicant Asif has filed this bail application, seeking his release on bail in FIR No.551/2012, lodged by complainant Sikandar at Police Station Jackson, Karachi, under section 302/324/34, P.P.C., stating therein that on the day of incident his mother had gone to the house of her sister, where some harsh words were exchanged between his mother and the sons of her sister, his mother due to fear came back to home, whereas the sons of her sister while chasing her came to their door and uttered filthy language, on which the complainant, his brother Shahzad, Fazal Mehmood and maternal nephew Jan Nawab came out and saw Asif and Sher Adam armed with T.T. pistols, Imran and Zeeshan with dandas, they with intention to commit the murder of complainant party started firing, in consequence thereof Fazal Mehmood and Jan Nawab sustained fire shot injuries and fell down, the accused persons thereafter ran away. Meanwhile a police mobile of Police Station Gulshan-e-Sikandarabad came there and removed both the injured to Zia-ud-Din hospital, wherefrom Fazal Mehmood was referred to Civil hospital, where he succumbed to his injuries. The complainant after funeral of Fazal Mehmood came to police station and lodged FIR. The bail application was moved before the trial Court, which was dismissed. Learned counsel for the applicant has contended that as per prosecution case, the deceased Fazal Mehmood had only one fire shot injury, the same was not attributed to any accused, whereas the complainant in his evidence before the trial Court has given a different version that Sher Alam fired at deceased Fazal Mehmood, the said evidence is contradictory to the facts narrated in FIR, as such he has taken "U" turn, such back track from earlier version make the prosecution case doubtful and the applicant is entitled to have the benefit of such doubt even at bail stage. Learned counsel has further contended that the father of the applicant Asif has also lodged FIR of counter version against the complainant party in respect of same incident, no recovery of crime weapon was effected from the appellant. In these circumstances the applicant has made out a case of bail, he requests that applicant may be released on bail. Conversely, learned counsel for the complainant has opposed the bail application and has contended that the prosecution has examined five witnesses, all of them have fully supported the prosecution and implicated the applicant Asif to be one of the assailants. Regarding the FIR of counter version, learned counsel has stated that it was registered after one and half years of the alleged incident, which indicates that it was lodged with mala fide intention to make out a ground for bail being case of counter version. Learned counsel has further contended that the complainant is prepared to produce all the witnesses before the trial court on any date of hearing and if the learned defence counsel avoid the adjournments the trial can be concluded within two to three months. Learned A.P.G. while adopting the arguments advanced by learned counsel for the complainant, has further added that this is a case of capital punishment, the applicant has been nominated in FIR with specific role of firing, the offence falls within the ambit of prohibitory clause of section 497(1), Cr.P.C. the case is about the conclude as such at this stage no case of bail is made out. I have considered the arguments and perused the record. No doubt the specific role of causing the fire shot injury to deceased Fazal Mehmood is not assigned to any accused, however, per prosecution, applicant Asif and his companion Sher Alam started firing ending the life of Fazal Mehmood and damaging the both eyes of Jan Nawab. All the accused armed with their respective weapon came to the place of incident following the mother of complainant together which shows their common intention attracting the provision under section 34, P.P.C. According to learned counsel for the complainant, most of the prosecution witnesses have been examined, only two or three witnesses remain to be examined, as such the trial is at the verge of conclusion. In these circumstances, at this stage any observation regarding the contradictions pointed out by learned counsel for the applicant in the evidence of complainant recorded by the trial Court, will prejudice the case of either side. The Honourable Supreme Court in the case of Muhammad Nawaz v. The State (2002 SCMR 1381) while declining the post-arrest bail has observed that since the trial is likely to be concluded in the near future, it would not be appropriate to attend the merits of the case lest it may prejudice the case of either party. For the above reasons and discussion, no case for bail is made out. I therefore, dismiss the bail application. MWA/A-59/Sindh Bail refused.