2002 PLP 1082 (MLD)

Ali Ahmad Junejo for Applicants. Kazi Wali Muhammad for the State. Mahmood A. Qureshi for the Complainant. Applicants Muhammad Arif and Muhammad Shahzad have been sent up to face their trial before the learned Sessions Judge, Karachi South by S.H.O. Police Station Artillery Maiden Karachi, South in Crime No. 110 of 2001 under sections 302/109/34, P.P.C. An application for bail was filed before the learned trial Court which has been rejected on 22nd August, 2001.

2. The facts in brief relevant for the purpose of the decision of this bail application are that complainant Muhammad Nasir son of Ismail lodged a report at the Police Station Artillery Maiden Karachi, South on 22‑6‑2001 at 1‑00 hours regarding the murder of his brother Khalid on 21‑6‑2001 at 2215 hours on the road in front of Avari Tower Hotel by two unknown persons by use of fire‑arm. Suspicion was shown in a person by name Lal Chacha Dhobi (Washerman) as the deceased was apprehending danger to his life at the hands of said Lal Chacha Dhobi due to some dispute in connection with a donkey cart race. "The complainant was informed about the said incident by some other donkey cart men when he and his two brothers reached at Mazar of Baba Abdullah Shah Ghazi while trying to find out deceased Khalid.

3. After usual investigation police submitted challan against applicants Muhammad Arif and Muhammad Shahzad for having caused murder of Khalid due to some dispute over theft of donkey cart and the clothes.

4. According to the prosecution case this incident was witnessed by P. Ws. Pervez Ali and Shahbaz Khan who were present near the place of incident on the day of incident and had taken injured Khalid to Jinnah Hospital .for, immediate medical aid alongwith some others. 1n their statements under section 161, Cr.P.C. both these witnesses had mentioned the features "Hulia" of the two assailants and subsequently picked up identified both these accused in the identification parade. It is the case of the prosecution that accused Muhammad Shahbaz was driving a motorcycle and Muhammad Arif who was riding with him had fired upon deceased Khalid. The motorcycle used by the accused in .he commission of the offence has been recovered from the possession of accused Muhammad. Shahzad at 'his pointation whereas accused Muhammad Arif pointed out the place near Netti Jetti Bridge where he had thrown TT Pistol the' sea water and despite efforts taken through the divers, police could not recover the same.

5. Mr. Ali Ahmed Junejo, learned counsel for the applicants has argued that names of the applicant do not appear in the F.I.R. They were arrested on 8‑7‑2001 but their identification test was held on 17‑7‑2001. He has further argued that in their statements under section 164, Cr.P.C. the two eye‑witnesses namely Pervez Ali and Shahzeb Khan have not named the applicants nor mentioned their hulia/features, etc. He has further pointed out that in the identification parade the witness have not mentioned the role played by each accused. In support of his plea for bail the learned counsel for the applicants has placed reliance on the case law laid down in 1995 SCMR. 122), (1998 PCr.LJ 1693), (1997 PCr.LJ 280), (1996 PCr.LJ 503), (1989 PCr.LJ 2227) and (1981 PCr.LJ 1225). The learned counsel has further relied upon (PLD 1972 SC 277) and prayed that benefit of doubt can be given to an accused even at the bail stage.

6. Kazi Wali Muhammad learned counsel for the State has opposed the bail application and argued that there are independent eye‑witnesses with whom no enmity is alleged by the applicants. The said eye witnesses who also appear to be natural witnesses have fully supported the case of the prosecution in their statements under sections 161 and 164, Cr.P.C. and have correctly picked up the applicants in the identification parade.

7. Mr. Mehmood A. Qureshi learned counsel for the complainant while adopting the arguments of the learned State counsel has submitted that ocular version and the post‑mortem report are in conformity with each other. Motorcycle used in commission of offence has been produced by accused Muhammad Shahzad. The learned counsel has also argued that there are reasonable ground to believe that the accused/applicants have committed the alleged offence and the case‑law cited by the learned is not applicable to the facts and circumstances of the cases as most of the cases relate to the decisions in appeals where the entire case .is examined from all angles whereas a deeper appreciation of evidence and material on record at the bail stage is not permissible.

8. I have given due consideration to the arguments advanced by the learned counsel for the parties and the case‑law cited by the learned counsel for the applicants. I have also gone through the police papers. I am fully conscious of the well‑settled proposition of law that deeper A appreciation is not permissible at the bail stage and only a tentative assessment is to be made. The F.I.R. in this case was lodged by a person who was not present at the time of incident but, the two eye‑witnesses Pervez Ali and Shahzad Khan who had taken deceased Khalid to hospital soon after the incident appear to the natural witnesses and in their le 161, Cr.P.C. statements they have clearly stated that they had seen incident and the hulia/features of the assailants were also described by them. The applicants were subsequently identified by them to be assailea of deceased Khalid. Motorcycle used in the commission of the offence has been recovered from the possession of accused Muhammad Shahbaz who had led the police party for the purpose of production of said motorcycle. There is nothing on record to suggest any enmity between the applicants and the said witnesses. The eye‑witnesses appear to be independent and natural witnesses. There appear no reason to believe that they have falsely implicated the applicants in the commission of this offence. Under the circumstances, as a result of tentative appraisal of evidence no case for grant of bail is made out hence this application is rejected. However, the applicant may repeal their applications before the learned Trial Court after recording of the evidence of the two eye witnesses, if so advised. H.B.T./M‑39/K Bail application rejected.