1992 P Cr (PLP)

Date of hearing: 5th February, 1989.1 This is a bail application filed by the applicant Karam Ali Shah son of Ahmed Shah, who is co-accused with two other co-accused namely, Roshan Ali Shah and Murood Hyder Shah alias Lalu Shah in a murder case under section 302/34, P.P.C. for killing Mst. Zahidan, who had pregnancy of six months. The motive alleged was that Agha Hub Ali Shah, who had first wife Mst. Huzoor Bibi, who is niece of the (sic) incident which annoyed the applicant and other two co-accused.

2. The three applicants had applied for bail before arrest (being Bail Application No.1113 of 1988), which was declined by me by the order, dated 26-10-1988. After that the applicant was arrested. He applied for bail after arrest which application was dismissed by the IIIrd Additional District and Sessions Judge, Nawabshah by a detailed order dated 11-12-1988. The applicant has therefore, filed the present application.

3. In support of the bail application Mr. Muhammad Hayat Juncjo, learned counsel for the applicant has urged as followed:-- (i) That the principles applicable for grant of bail before arrest are different from the principles relating to the grant of bail after arrest. (ii)That there is conflict between the version given in the F.I.R. and the medical evidence. (iii) That the complainant and his brother Irshad Ali are admittedly chance witnesses and, therefore, cannot be relied upon. (iv) That the Investigating Officer after rejection of the application for bail before arrest by this Court examined the witnesses and came to the conclusion that there was no case against the applicant.

4. On the other hand Mr. Abdul Ghafoor Mangi, Assistant Advocate General,. Sindh, and Mr. Naimatullah, J. Qureshi, Advocate for the complainant assisted by Al-Haj Ameer Ahmed Khan, Advocate have opposed the application. It has been contended by them that there is no conflict between the version given in the F.I.R. and the medical evidence nor the complainant and his brother can be said to be chance witnesses, and lastly that the opinion of the Investigating Officer, is patently unreliable as after the rejection of the bail before arrest application the applicant who is an ExhA.S.I. attempted to create a ground of alibi.

5. Reverting to the first submission of Mr. Muhammad Hayat Junejo that the principles for the grant of bail before arrest and after the arrest are different. It may be observed that there cannot be two opinions about the above proposition of law. As regards second submission of Mr. Muhammad Hayat Junejo that there is conflict between the version given in the F.I.R. and in the medical evidence, it may be observed that he has pointed out that according to the F.I.R. the accused had throttled the deceased but according to the medical evidence there were no marks of violence on the neck of the deceased. B However, Mr. Manghi, Assistant Advocate-General has pointed out that there was an injury on the back of the neck as per medical evidence. In this view of the matter, at this stage it cannot be said that the version of the complainant given in the F.I.R. is not plausible. The deceased had also fractures which corroborates the factum of throwing her into the well. As regards the third submission of Mr. Muhammad Hayat Junejo that the complainant and his brother Irshad Ali are admittedly chance witnesses and, therefore, cannot be relied upon, it may be observed that the husband of the deceased, who is closely related to the accused inasmuch as that he is the husband of the applicant's niece who is his first wife has supported the version C given in the F.I.R. and also the factum that he and the complainant, his brother, when entered into his house they saw the accused killing the deceased in the manner given in the F.I.R. If I were to ignore the statements of the complainant and his brother Irshad Ali, the statement of the deceased's husband cannot be at this stage rejected. As regards the fourth submission of Mr. Muhammad Hayat Junejo that the investigating Officer after rejection of the application for bail before arrest by this Court examined the witnesses and came to the conclusion that there was no case against the applicant, it may be observed that it has been rightly pointed out by Mr. Naimatullah J. Qureshi that the applicant who is as Ex-A.S.I. did not raise any plea of alibi in his application filed by him before this Court for bail before arrest. But when his first application was rejected by this Court on 26-10-1988, he got the statements of 5/6 witnesses recorded by the police to the effect that the applicant at the relevant time was playing cards at a place situated at the quite far away from the place of incident. No reliance D can be placed at this stage on the alleged opinion of Investigating Officer keeping in view that the applicant himself is an Ex-A.S.I. and that he had not raised any plea of alibi in his previous application which was rejected by this Court and the alleged statements were made by the witnesses after the above, rejection of the bail application.

6. The case is of a broad daylight murder of an innocent woman who had E pregnancy of six months, there seems to be no justifiable reason to admit the applicant to bail. The application is, therefore, dismissed. These are the reasons in pursuance of a short order of even date H.B.T./K-271/K Bail application dismissed