2021 PLP 138 (YLRN)

KHADIM HUSSAIN M. SHAIKH, J.

Through the captioned bail application, applicant Ameer Bux son of Nihal Khan Brohi has sought his release on post arrest bail in the case, emanating from FIR No.13 of 2019, registered at Police Station Garhi Khairo, for offence under sections 302, 147, 149, 504, P.P.C. after his bail plea has been declined by the learned Session Judge, Jacobabad by dismissing his bail application vide Order dated 08.07.2019.

2. Learned counsel for the applicant has mainly contended that the applicant is innocent and he has been falsely implicated in the subject case by the complainant party due to previous hostility between the parties over the murderous enmity; that the complainant and other eye-witnesses by filing their affidavits have exonerated the applicant and have raised no objection for grant of bail to him. The learned counsel prays for release of the applicant on bail.

3. The learned Deputy Prosecutor General has mainly contended that the applicant is nominated in FIR with specific role of causing injury with lathi on the head of deceased Deen Muhammad; that the medical evidence is in line with the ocular version; and, that the P.Ws, who have now filed their affidavits, have supported the version of the complainant in their Statements under section 161, Cr.P.C. having implicated the present applicant with specific role of causing injury to deceased Deen Muhammad on his head. Learned Deputy Prosecutor General prays for dismissal of this Criminal Bail Application.

4. I have considered the submissions of the learned advocate for the applicant and the learned Deputy Prosecutor General and have gone through the material available on the record.

5. From a perusal of record it would be seen that the applicant is nominated in the FIR with specific role of causing injury by use of lathi on the head of deceased Deen Muhammad; the medical evidence has supported the ocular version and postmortem report reveals that the deceased had died due to injury caused to him with sharp cutting weapon and hard blunt substance; P.Ws Manzoor Ahmed and Ghulam Muhammad, who have now filed affidavits in favour of the applicant in their statements under section 161, Cr.P.C. have implicated the present applicant with specific role shown in the FIR; the eye-witnesses to take summersault by filing their affidavits, deviating from their earlier version, just to enable the accused to get bail deserves to be deprecated and Court is to decide the bail application strictly according to law on merits in view of the well settled law. Reliance in this context is placed on case of Nasir Ahmed v. The State (PLD 1997 SC 347), wherein the Hon'ble Supreme Court of Pakistan has held that: "At the time of hearing of bail application Court is supposed to do tentative assessment of the material available on the record, which is different from final appraisement and evaluation of evidence which is to be done by the trial Court which has to record evidence of witnesses. A trend has developed nowdays that eye-witnesses some times take a somersault and give statements which are different from prosecution case and some times file affidavits also at the stage of hearing of bail applications of accused persons with intention of creating doubt in the case of prosecution to enable the accused to get bail. The Courts have to be very careful in such cases and see that bail applications are disposed of strictly according to law on merits keeping in view the distinction between tentative assessment and actual evaluation of evidence by the trial Court.

6. In view of what has been discussed above and from the tentative assessment of the material collected by the prosecution, it appears that prima facie there is sufficient material against the applicant connecting him with this crime, falling within the prohibitory clause of section 497, Cr.P.C, which disentitles the applicant to the grant of concession of bail. In such view of the matter, this bail application was dismissed by short order announced by me on 03.10.2019 and these are the reasons for the same.

7. The observations made herein-above are tentative in nature only for the purpose of deciding the instant bail application, which shall not, in any manner, influence the learned Trial Court at the time of final decision of the subject case. SA/A-95/Sindh Application dismissed.