2003 PLP 1785 (MLD)

S.497(2)--Penal Code (XLV of 1860), Ss.302/504

Bail, grant of-- Further inquiry

Re-investigation revealed that distance between two points viz. place where accused were allegedly standing and the presence of deceased, was about 200 metres and it was impossible, in circumstances, to hit anybody in dark hours of night from such a long distance with a normal weapon as stated in the F.I.R.

Not possible that the complainant party had identified two persons from such a long distance

Independent witnesses had denied, the version of prosecution before Investigating Officer

Investigating Officer in the subsequent report, also had recommended severe departmental action against previous Investigating police officials for their defective investigation in the case

Fact that accused was a patient of tuberculosis and under treatment of Institute-of Chest Diseases, was ascertained by letters of Civil Surgeon and Director-cum-Chest Specialist of the Institute

All prosecution witnesses were related and hostile whose statements under S.161, Cr.P.C., were recorded after delay of one month

Bail had already been granted to co-accused

Case of accused had become one of further enquiry on all such scores

Accused haying been able to make out a case for grant of bail, he was admitted to bail. Abdul Rasool Abbasi for Applicant. Ali Azhar Tunio, Asstt. A.-G. for the State. This is a case in which the accused has been implicated in Crime No.57 of 2001 registered with Police Station Khairpur Nathan Shah under sections 302, 504, P.P.C. According to the F.I.R. complainant alongwith his family had shifted his residence at lands of Sultan Gadhi. On 7-5-2001 the complainant party was asleep when at 2.00 a.m. in the night they woke up on a call from outside and caw two persons standing outside who were identified on moonlight as present applicant Muhammad Amin armed with gun and Muhammad Yaseen armed with a hatchet. It was Muhammad Amin who directly fired from his gun which hit Mst. Bhaoni on her chest and also fell down by raising screams and died. After registration of F.I.R. investigation followed and applicant was arrested on 31-5-2001 and through interim Challan he was sent to stand trial. Learned counsel has submitted that all prosecution witnesses are interested and hostile and the statement under 161, Cr.P.C. of P.Ws. were recorded after unexplained delay, of one month. The applicant being a patient of T.B. is under treatment at Institute of Chest Decease at Kotri as his further detention in jail is detrimental to his life. He further submitted that re-investigation was entrusted to A.S.P. Kotri who conducted re-investigation of case, visited the scene of occurrence and came to conclusion that accused were innocent and their case was recommended by him to be disposed of as untraced under A-Class which makes the case of present applicant doubtful and one of further enquiry. The co-accused Muhammad Yaseen has been granted bail in Criminal Bail Application No.845 of 2001. The perusal of subsequent report filed by the D.P.O. Dadu with District and Sessions Judge, Dadu shows that as per re-investigation conducted by A.S.P. Sehwan Sharif it was found that the distance between two points viz. place where accused were allegedly standing and the presence of deceased, is around 200 metres hence firstly it was impossible to hit anybody in the dark hours of night from such a long distance having a normal weapon as alleged in the F.I.R. and the angle between two points was also improbable to hit anybody, secondly merely in the moonlight at 2.00 a.m. in the night it is very strange that complainant party identified two persons from such a large distance. The independent witnesses had denied the version of prosecution before A.S.P. Sehwan Sharif. In the subsequent report the said A.S.P. Sehwan Sharif also recommended severe departmental action against previous Investigating Officer SIP Ali Akber Panhwar and A.S.-I. Ghulam Mustafa Tunio for their defective investigation in this case. The fact that the present applicant is a patient of Tuberculosis and under treatment a Institute of Chest Disease at Kotri, is ascertained by the letters of Civil Surgeon Dadu and Director-Cum-Chest Specialist Institute of Chest Disease which are already brought on record. Admittedly all the P.Ws. are related and hostile whose statements under section 161 were recorded after delay of one month. The bail has already been granted by thus Court to co-accused Muhammad Yaseen in Criminal Bail Application No.845 of 2001. On all these scores the case of present applicant has become one of further enquiry. In view of the above discussion applicant has been able to make out a case for bail which is granted in the sum of Rs.200,000 and executing a P.R. bond in the like amount to the satisfaction of trial Court. H.B.T./M-511/K Bail granted.