2005 PLP 293 (YLR)

Saleem Akhtar Buriro for the Complainant. Ghafoor Pirzada for the State. Date of hearing; 30th August 2004. Applicants are facing trial in Crime No.52/2003 registered under sections 302, 324, 457, 458, 460, 469, 148 and 149, P. P. C. before learned Sessions Judge, Sukkur. Allegations against the applicants are that they in company of co-accused Wali Muhammad and others duly armed with deadly weapons trespassed into the house of complainant on 27-9-2003 at about 0130 hours and while they were untying the ropes of buffaloes of the complainant, the complainant, his sons Shahbaz Dino alias Miskeen Ali, Ashiq Ali, Ghulam Hussain and Shahzado woke-up, identified the applicants and other accused in the light of searchlights, raised cries and his sons Shahbaz Dino alias Miskeen Ali and Ashiq Ali managed to grapple with accused. Further allegations are that co-accused Wali Muhammad Jagirani opened fire upon Shahbaz Dino and Ashiq Ali, the above named sons of the complainant while rest of the accused opened fire on complainant and his other sons as a result. Shahbaz Dino received injuries on his chest and other parts of body while Ashiq Ali received fire arm injury on his left shoulder and all other managed to save themselves. Both the injured were allegedly taken to hospital where Shahbaz Dino succumbed to his injuries. It is contended by Mr. Malik, learned counsel for the applicants Nos. 1 and 2 Ghulam Nabi and Ameer Bux that there is delay of about 4-1/2 hours; the allegation that the applicants and the accused were identified on searchlight appears to be improbable, no blood was found of the place of incident; no recovery of weapon has been effected from the applicants; hence the case of the applicants is of further enquiry. He has placed reliance on the case of State v. Fazal Ahmad 1970 PCr.LJ

633. It is contended by Mr. Shah, learned counsel for the applicant No.3 Mahboob Ali that there are general allegations against the applicant; no role has been assigned to him and that the applicant is confined in jail for more than one year hence entitled to the grant of bail. On the other hand it is contended by Mr. Buriro, learned counsel of the complainant that the names of the applicants are specifically mentioned in the F. I. R. all of them armed with deadly weapons trespassed into the house of complainant and that co-accused Wali Muhammad Jagirani is alleged to have opened fire on deceased Shahbaz Dino while the applicants and others opened fire upon the other sons of complainant as a result his son Ashiq Ali received fire-arm injury; blood stained earth has been recovered from the place of incident with empties fired from the fire-arm weapons. He has vehemently opposed the bail of the accused. Learned State counsel has supported the arguments of learned counsel for the complainant. I have given my due attention to the arguments of the learned counsel for the parties. There is no denial of the fact that the names of the applicants are mentioned in the F.I.R. There is specific allegation against them that they had trespassed into the house of the complainant duly armed with weapons and attempted to take away the buffaloes when deceased Shahbaz Dino and Ashiq Ali, the two sons of complainant grappled with them and on which co-accused Wahid Dino opened fire as a result deceased Shahbaz Dino was murdered while Ashiq Ali received fire arm injuries on his shoulder. The other accused also opened fire on the complainant and his other sons who luckly were saved. Complainant while lodging his report has already stated that after the above incident took place, he brought both the injured at hospital at Rohri and thereafter went to lodge report. There is delay of 4-1/2 hours, which, in the above circumstances is possible or not when police station is at 6/7 kilometers from place of Wardat in the interior of District, shall be seen at the time of trial. Even otherwise delay per se could not be regarded as a ground to release the accused in the circumstances present in this case. Learned counsel for the complainant and for State referred to the Inspection Memo and stated that it is not only that blood stained earth was taken from place of incident but empties were also recovered. In the circumstances, the applicants, prima facie, appear to be linked with the commission of crime. The case-law referred to the learned counsel for the applicants is on the point of appreciation of evidence on appeal filed against acquittal of accused therein and is distinguishable and does not support the case of the applicants. Resultantly, I see no merits in this bail application and dismiss the same. H.B.T./G-35/K Application dismissed.