2005 PLP 3217 (YLR)

RAHMAT HUSSAIN JAFFERI, J.

The applicant is in custody in Crime No. 144 of 2003 of Police Station, Mirpur Mathelo. According to F.I.R. there was enmity between the complainant and accused Hadi Bux over murder of Nooruddin nephew of the complainant. The accused Hadi Bux was pressurizing the complainant to change his evidence in the murder case but he was refusing to change the evidence. In this background on 7-9-2003 at 11-00 a.m. the complainant Lakhan, his daughter deceased Rehana, niece Kundan were going to watercourse. When nine accused persons including the accused Hadi Bux and the applicant Umed Ali armed with Kalashnikovs reached there. The accused Lal Bux instigated the other accused not to spare the complainant as he was not changing the evince therefore accused Asghar fired from his Kalashnikov at the complainant but the fire was missed. The accused Umed Ali and accused Imamuddin fired from their Kalashnikovs which hit Mst. Rehana. She, after receiving injuries fell on the ground. Accused Sher Muhammad fired from this Kalashnikov at Mst. Kundan. She also received injuries and fell down on the ground. On the cries P.Ws. arrived and the accused ran away. The complainant went to the injured where he found Mst. Rehana lying dead. Then he went to police station and lodged the report at 1-00 p.m. The applicant moved bail application before the trial Court but the same was dismissed, hence the present bail application. The learned Advocate for the applicant has stated that co-accused Imamuddin and Lal Bux have been released by the police under, section 169, Cr.P.C. that the complainant moved an application under section 193, Cr.P.C. to join the released accused but the said application was dismissed; that the case of the applicant and Imamuddin is identical to each other therefore on the rule of consistency has applicant is also entitled to bail. He has further stated that there is conflict between oral and medical evidence; that the injuries on the person of Mst. Kundan have been declared to have been caused within 24 hours which is not corresponding with the incident. The learned counsel has cited 2002 PCr.LJ 791; 1980 SCMR 889; 2004 SCMR 481; PLD 2004 Kar.38; 2002 PCr.LJ 494 and 1997 SCMR 103 in support of his contentions. On the other hand, the learned A.A.-G has stated that the name of the applicant is mentioned in the F.I.R.; that specific role of causing fire-arm injuries has been attributed to the applicant; that the co-accused Imamuddin was released on the plea of alibi as such the case of Imam Bux is distinguishable. He has strongly opposed the grant of bail. I have given due consideration to the arguments and gone through the material available on the record and find that there is recorded enmity between the parties over the murder of Nooruddin nephew of the complainant in which the co-accused Hadi Bux was involved. The allegation of prosecution is that the accused party was pressurizing the complainant to change his evidence but he was refusing to do so. As such motive has been assigned in this case. However the said motive requires evidence therefore no definite finding can be given at this stage. From the material available on the record, it is clear that the P.Ws. have assigned the role of causing fire-arm injury on the person of deceased Mst. Rehana to the applicant. The question of diameter of the injury on the person of Mst. Rehana as mentioned by the Medical Officer can be determined at the time of trial as it requires evidence to clarify as to Whether or not such type of injury can be caused by Kalashnikov. If any finding is given on, the said point, it might prejudice the parties. The co-accused Imamuddin has been released on the pleas of alibi as such his case is distinguishable from the case of the applicant. At the bail stage only tentative assessment of the evidence is permissible. From that assessment after considering the material available on the record I am of the view that there are reasonable grounds for believing that the applicant is involved in the case therefore he is not entitled to concession of bail as his case falls within the prohibitory clause of section 497, Cr.P.C. The case-law cited by the learned Advocate for the applicant is distinguishable from the facts and circumstances of the present case. Consequently the application is dismissed. H.B.T./U-11/K Bail refused.