2012 P Cr (PLP)

SYED HASAN AZHAR RIZVI, J.

By this order I would decide the bail application filed by the applicants Bachal, Bakshal, Ahmed and Hidayatullah. Brief facts of the case as incorporated in the F.I.R. are that about two months back from registration of the F.I.R. a quarrel took place between the complainant and Bachal wherein complainant received injuries and Lal Bux son of Kaloo Sabki received injuries, who expired on 17-8-2010, therefore, a case was registered against the brothers of the complainant. On 20-8-2010 at about 2-00 p.m. Ahmed, Bachal, Hidayatullah and Bakshal armed with different weapons entered in the house of the complainant and fired on his brother Nizam which resulted in his death and thereafter, went to Timour Stop and murdered the another brother of the complainant namely Dilli Jan by firing. On 25-10-2011 the Honb'le Chief Justice of this Court accorded permission that instant matter be heard at the principal seat, Karachi. Learned counsel for the applicants contended that on the basis of record there exists previous enmity, which has been admitted by the complainant in the F.I.R, therefore, the story narrated by the complainant in F.I.R. is highly improbable and unbelievable. He further contended that deceased Nizam received total four injuries out of which two were wound of entry and, while two wound of exit, this fact shows that deceased had received total two injuries and as such incident had not taken place in the manner as suggested by the prosecution, therefore, case is of further inquiry and applicants are entitled for grant of bail. He also urged that as per post-mortem report of the deceased, post-mortem of deceased Nizam was started at 6-30 p.m. and post-mortem of deceased Dilli Jan was started at 7-30 p.m. Learned counsel further submits that no rigor mortis were found on the dead bodies, which affirms that time of death of deceased persons does not tally with the time given by the complainant in the F.I.R. Moreover at the time of identification of both the deceased before the doctor the brother of the deceased namely Sarwar son of Ismail Sabki was present while he was also present at the time when mashirnama of place of incident of Dilli Jan was prepared at 1830 hours on 20-8-2010 and the distance between place of incident and hospital is about 10 kilometres, therefore, question of his presence at both the places at that time creates doubt as such according to the learned counsel matter requires further inquiry. Learned counsel has further contended that applicants/accused according to the F.I.R. caused firing upon the deceased Nizam by entering into the house while as per mashirnama of the place of incident of deceased Nizam his body was lying at the gate of deceased's house, this fact also creates doubt according to the learned counsel. Learned counsel for the applicants submits that there are material contradictions between the medical evidence and the ocular evidence. According to learned counsel medical evidence belied ocular evidence. He further submits that since nineteen months the applicants are in jail and even charge has not been framed as yet. He further contends that no role has been assigned to the applicants Bakshal and Hidayatullah in the F.I.R. Learned counsel for the applicants has relied upon the following judgments:-- (1) Unreported case bearing Criminal Bail Application No.39 of 2011. (2) 1980 SCMR 784 (Jaffar and others v. The State). (3) 2010 SCMR 1178 (Dilmurad v. The State). (4) PLD 1996 Supreme Court 241 (Syed Amanullah Shah v. The State and another) (5) 2010 MLD 877 (Master Ghulam Muhammad and others v. The State). (6) 2010 PCr.LJ 572 (Muhammad Hassan v. The State). Mr. Shahid Ahmed Shaikh learned APG contended that applicants were nominated in the F.I.R., specific role has been attributed to the applicant No.1 Bachal and applicant No.3 Ahmed in the F.I.R. He further contended that two young men aged between 27 to 35 years have been brutally murdered as a result of incident of straight firing in the broad-daylight as such he vehemently opposed for the grant of bail. I have heard Mr. Fareed Ahmed A. Dayo counsel for the applicants. Mr. Shahid Ahmed Shaikh learned APG and perused the relevant record with their assistance. On tentative assessment of the material available on record, it reveals that the applicants came to the place of incident, duly armed with repeaters and country made pistols. Applicant No.1 Bachal and applicant No.3 Ahmed have been assigned role of direct firing upon the deceased Nizam and Dilli Jan with intention to commit their murder and both the deceased expired at the spot. No doubt according to the F.I.R. applicant No.2 Bakshal and applicant No.4 Hidayatullah are nominated in the F.I.R. having country made pistols in their hands but no allegation of direct firing upon the deceased Nizam and Dilli Jan has been attributed to them. So far the contradictions/conflict between medical evidence and ocular evidence pointed out by learned counsel for the applicants are very minor in nature and requires deeper appreciation of evidence, which is not permissible at the time of grant of bail and only tentative assessment of same could be made. No active and specific role of causing specific injury has been assigned to the applicant No.2 Bakshal and applicant No.4 Hidayatullah in the F.I.R. Prima facie case of applicants Nos. 2 and 4 is of further inquiry into their guilt. Whereas the applicants Nos. 1 and 3 have been nominated in the promptly lodged F.I.R. with their specific role of causing fire-arm injuries to the deceased, resulting death of both the deceased at the spot. Prima facie ample incriminating material was/is available on record connecting accused/applicants Nos.1 and 3 with the crime imputed to them. No merit having been found in bail application of accused persons Bachal and Ahmed same was declined/dismissed. Case-law cited by the learned counsel for the applicants are distinguishable with the facts and circumstances of the present case. Above are the reasons of my short order dated 21-3-2012 whereby the bail was granted to the applicant No.2 Bakhshal and applicant No.4 Hidayatullah on furnishing surety in the sum of Rs.100,000 (Rupees One Lac only) each with P.R. Bond in the like amount to the satisfaction of the trial Court and declined the bail to the applicant No. 1 Bachal and applicant No. 3 Ahmed with directions to conclude the trial within six months from the date of receipt of this order. Observations made hereinabove are of tentative nature and the trial Court shall not be influenced by any such observation. M.W.A./B-5/K Order accordingly.