2013 P Cr (PLP)

FAROOQ ALI CHANNA, J.

The applicants, through instant criminal bail application seek post-arrest bail in Crime No.32 of 2012, Police Station City, Jacobabad, under sections 324, 504, 148 and 149, P.P.C, lodged by complainant Muhammad Aslam Khoso with the allegations that due to murder of dacoit Shah Nawaz Khoso in police encounter, his son Zahid Hussain was suspecting them involved in the murder of Shah Nawaz; demanding Rs.10 Lacs as compensation, otherwise to face consequences. On the day of incident accused Shah Zaman, Zahid Hussain, Aftab Hussain, Younis and two unknown persons intercepted complainant party; accused Shah Zaman, Zahid Hussain, Aftab Hussain and Younis with intention to commit Qatl-e-amd fired from their respective pistols at Zulfiqar Ali alias Zain Khan, which he received on different parts of his body; accused Shah Zaman also fired at their servant Nasrullah Mastoi on his left knee. The unknown persons over powered complainant and other witnesses, however on their cries the people attracted, therefore, the accused persons ran away. Complainant then took both the injured to civil hospital, Jacobabad, wherefrom injured Zulfiqar Ali alias Zain Khan was referred to C.M.C. Hospital, Larkana, where after admitting injured the complainant came at Police Station and lodged F.I.R.

2. The bail application was moved before learned trial Court, but dismissed.

3. I have heard Mr. Inayatullah Morio, learned counsel for the applicants. He has contended that case is false and fabricated, due to enmity admitted in F.I.R. by the complainant. There is unexplained delay of 22 hours in lodging F.I.R., which delay is sufficient to implicate any person after consultation and thought. Learned counsel has further contended that incident had taken place during night time and no source of identification is shown in the F.I.R., as such the identification of applicants/accused is doubtful. Learned counsel has further contended that in fact the applicants have been involved due to enmity over the marriage contracted by co-accused Yousif (cousin of applicants) with Mst. Rabia, the niece of complainant against his wishes. Said Yousif was also implicated in this case at latter stage and was granted bail by the learned trial Court. Learned counsel has further contended that injury attributed to accused Aftab Hussain is on non-vital part of injured, as such the case against him requires further enquiry. The main contention raised by the learned counsel for the applicants is that injured Nasrullah who is also eyewitness of the incident has sworn affidavit with different story that at the time of alleged incident they were intercepted by two culprits who attempted to commit robbery, however on their resistance they fired upon them and caused injuries. The trial Court while rejecting the bail has failed to consider the affidavit of injured P.W. Nasrullah. On this point learned counsel has relied upon cases reported as Ali Muhammad and others v. The State (2002 PLD Karachi 125), and Muhammad Najeeb v. The State (2009 SCMR 448).

4. Learned State Counsel has opposed the grant of bail and has contended that the applicants are nominated in the F.I.R. with specific role of causing fire shot injuries to injured Zulfiqar Ali alias Zain Khan and Nasrullah with intention to commit their qatl-e-amd. The prosecution case is corroborated by the medical evidence, which reflects eight fire shot injuries including injury on the head of injured Zulfiqar Ali alias Zain Khan. The injuries Nos. 2, 3, 4 and 5 have been declared as Jurh Ghayr Jaifah, which provide punishment to the extent of ten years, and comes within the ambit of prohibitory clause of section 497(1), Cr.P.C. Learned State counsel has further submitted that crime weapons were recovered from the possession of the applicants, the empties were also recovered from the place of vardat; as such no case for bail is made out.

5. I have heard the arguments and perused the record. As per F.I.R. the specific allegation of causing fire shot injuries to Zulfiqar Ali alias Zain Khan and Nasrullah with intention to commit their qatl-e-amd is against Zahid Hussain, Aftab Hussain, Shah Zaman and Younis. The injuries to both the injured are corroborated by medical evidence, which reflects eight fire shot injuries on different parts of body of the injured Zulfiqar Ali alias Zain and knee of injured Nasrullah. The repetition of straight fire shots prima facie show the intention of accused persons to commit qatl-e-amd of injured. The prosecution case is supported by the eyewitnesses of the occurrence, so also recovery of empties from place of vardat and pistols used in crime from the possession of the applicants/accused. So far affidavit of injured Nasrullah exonerating the applicants/accused with a new story of occurrence is concerned; the same is of no consequence, as affidavit of one of the P.W. cannot be given the status of evidence at bail stage, as neither the affidavit is statement under section 161, Cr.P.C. nor 164, Cr.P.C. Similar view has also been taken in the cases reported as 2007 YLR 1920, 2004 PCr.LJ 550, 1995 MLD 1254 and PLD 1990 SC

83. The learned counsel for the applicants on query also shown his un-awareness as to whether at the time of filing the affidavit injured Nasrullah was the servant of the complainant or left his service as such the sanctity of affidavit leaves a question mark. Furthermore, injured Nasrullah is not the sole eye-witness of the occurrence, the main victim is Zulfiqar Ali alias Zain Khan, who has fully implicated the applicants assigning them specific role of causing fire shot injuries to him, some of which are opined by medical officer as Jurh Ghyr Jaifah, punishable to the extent of ten years. The citations relied upon by the learned counsel for the applicant with profound respects bear different facts and circumstances from the instant case, as such the same are not applicable.

6. For the reasons stated above, prima facie there appears reasonable grounds for believing that the applicants/accused have been guilty of a non-bailable offence, hence they are not entitled to be released on bail. Bail application is dismissed. MWA/Z-3/K Bail refused.