1999 PLP 503 (MLD)

Sher Shah and Noor Shah both sons of Mazloom Shah are accused in case F. I. R. No.159, dated 11-10-1997 of Police Station Hattar. Briefly stated the facts of the case are that Tasadaq Shah made the report wherein he has charged the two petitioners alongwith one Daud Shah for having committed 'Qatl-e-Amd' of Zulfiqar Shah by causing fire-arm injuries and similarly they have injured Mukhtiar Shah (both sons of the complainant).

2. Learned counsel for the petitioners argued that petitioners are entitled to bail as there is delay in making the report, that the report was made on the spot, that Noor Shah petitioner is said to have fired at the deceased with his shot-gun while Sher Shah who was allegedly armed with a pistol has fired at Mukhtiar Shah and injured him alongwith his co-accused Noor Shah. Further, that according to the medico-legal report Mukhtiar Shah has received multiple fire arms injuries on the face and neck, suggestive of the fact that it was the result of a shot-gun injury which can be attributed to Noor Shah and not to Sher Shah, that no empty of pistol has been recovered. The learned counsel also took me through the site plan and explained that the accused-petitioners have been shown in the court-yard of their house while complainant is in the lane running north-south and would be at a position wherefrom he cannot see the assailants. Learned counsel also referred to the duration of time between death and post-mortem as given by the Doctor and argued that even the time of occurrence is doubtful. He has also referred to PLD 1995 SC page 34 (g) and submitted that the complainant's side has involved three brothers and there is likelihood of false implication.

3. Learned counsel for the State and complainant both opposed the grant of bail and submitted that both the petitioners are directly charged in the F.I.R., there is no previous enmity between the parties, that non-recovery of empty of pistol cannot help the petitioners at this stage because Sher Shah is to be held vicariously liable having common intention with his other real brothers. Further, that Mukhtiar Shah who was injured and has received fire-arms injuries on the vital part of his body, i.e., face and neck causing destruction of one of his eye has charged both the petitioners for commission of the offence, and has attributed effective role to them.

4. Learned counsel for the petitioners at some stage did not seriously press for the bail of Noor Shah but contended that Sher Shah's case is distinguishable in as much that he appears to have not participated in the crime though may be present on the scene.

5. It is a case in which one person is killed as a result of having sustained fire-arm injuries and the other has been injured. The injured has made a statement wherein he has charged the petitioners for the commission of the offence. The delay in recording the statement of injured is explainable as he, after the receipt of injury, remained hospitalised for quite long time during which he was taken to Islamabad -for further treatment. The question if the fire shot of Sher Shah has gone astray or has not hit the target cannot at this stage exonerate him of a serious charge which has been levelled against him. Further, there is confession of Noor Shah accused in which he has taken upon himself the responsibility of hitting the deceased as well as causing injuries to Mukhtiar Shah. In the said confession he has named Sher l Shah petitioner to be present but with no role.

6. The accumulative effect of the available circumstances and record is that there is a strong, prima facie, case against both the petitioners at present they are not entitled to concession of bail.

7. As the challan could not be filed due to file being summoned by this Court in the bail proceedings, and earlier by the learned Sessions Judge, the record of this case be immediately sent to the concerned quarters with the direction that they shall expedite the filing of challan and the case-be sent up for trial to the learned trial Judge who shall on receipt of case file conclude the trial within six months. H.B.T./61-P Appeal dismissed