2010 P Cr (PLP)

MUNIB AKHTAR, J.

This bail application arises out of F.I.R. No.327 of 2009, registered at P.S. Ghotki on 14-8-2009 at around 8-10 a.m. in respect of an incident that allegedly took place some hours earlier in the middle of night at around 1-30 a.m.

2. The complainant states that he and his brother had an on-going enmity with the bail applicant No.1 arising out of a dispute concerning immovable property and that the latter used to threaten the complainant's brother (Nazir Ahmed) in this regard. It is stated that on the night of incident the complainant along with his brothers and other family members, including the aforesaid Nazir Ahmed, were sleeping in the house (with the electric light switched on) when at around 1-30 a.m. they were woken up by some noise and saw 4 men standing there, armed with guns. Two of those men are identified in the F.I.R. as the present bail applicants whereas the other two men were not recognized by the complainant although he says that he would be able to recognize them if he saw them again. According to the complainant, the bail applicant No.1 challenged the complainant party and then he and bail applicant No.2 opened fire at his brother Nazir Ahmed who was hit and fell to the ground. His brother's wife Mst. Afroz, seeing her husband being shot went towards him, at which the bail applicant No.1 fired on her as well which resulted in her sustaining injury on her leg. Complainant raised hue and cry and hearing their cries for help and the firing some co-villagers came running to the house and on seeing them, the accused party ran away. Complainant saw that his brother had received multiple injuries and had already died as a result thereof, whereas his wife was injured on her right thigh. The deceased was taken to Taluka Hospital, Ghotki and after obtaining police permission his postmortem was carried out. Thereafter, the complainant brought back the body of his deceased brother to their village and after completing funeral rites, the complainant made his way to the Police Station for registration of F.I.R.

3. Learned counsel for the bail applicants stated that there were several discrepancies in the matter which made it a matter requiring further enquiry and thus the bail applicants were entitled to the grant of bail. Learned counsel submitted that the mashirnama' of the deceased was purportedly prepared at 3-30 a.m. although admittedly, the F.I.R. was registered at around 8-10 a.m. Similarly mashirnama of injured Mst. Afroz was apparently prepared at 3-10 a.m., again before registration of the F.I.R. He submitted that according to the record, the body of the deceased was received by the medical officer for postmortem at 4-00 a.m. and that the postmortem was conducted immediately and, took about one hour. Yet, the mashirnama of the deceased stated that the dead body was lying in the mortuary when the mashirnama was prepared at 3-30 a.m., as aforesaid. Leaned counsel submitted that if the postmortem was concluded at around 5-00 a.m., it was not possible that the body could have been brought back to the village and funeral rites completed, and then for the complainant to have then gone to Police Station at 8-10 a.m. for registration of the F.I.R. In other words, learned counsel submitted that the time frame between the time of the alleged incident and the registration of F.I.R. was inconsistent and contradictory, and was so compressed that all of that events that allegedly occurred during such period could not possibly have been completed within the hours available. According to him, these were all material factors that required further enquiry into the matter. Learned counsel also submitted that the mashirnama of place of incident, which was allegedly prepared at 9-30 a.m. on 14-8-2009 showed that only three empties of .12 bore cartridges had been recovered although according to averments made in the F.I.R. a number of shots had been fired by the two bail applicants. He submitted that this discrepancy also required further enquiry. Finally, he submitted that the postmortem report showed a number of entry wounds but no corresponding number of exist wounds and despite this, only five pellets had been recovered from the dead body, whereas according to learned counsel, there should have been many more pellets and this was also therefore a matter that called for further enquiry.

4. Learned APG submitted that in the present case F.I.R. had been lodged without delay, in which the bail applicants had been expressly identified and nominated and specific roles had been assigned to them, namely of having fired shots that proved fatal for the deceased. The bail applicant No.1 was also specifically accused of having fired the shot that injured Mst. Afroz. He submitted that at bail granting stage it was only a tentative assessment of the record that was permissible and nothing that required a deeper appreciation of the case could be carried out. He submitted that the alleged discrepancies pointed out by the learned counsel for the bail applicants fell in the latter category, i.e., required a deeper appreciation whereas on a tentative assessment of the facts, the bail applicants were prima facie linked with the offences of which they stood accused. He accordingly prayed that bail application be dismissed.

5. In my view the bail applicants have failed to make out a case fort the grant of bail. They have been specifically nominated in the F.I.R. and specific role has been assigned to them which resulted in the deceased receiving injuries that proved fatal on the spot. There is a specific allegation of an on-going enmity and dispute between the bail applicants and the complainant and his deceased brother. The discrepancies pointed out by the learned counsel for the bail applicants are of such a nature that a resolution of the same requires a deeper appreciation of the case than is warranted or permissible in the present circumstances. In any case, in my view the matters that are raised by learned counsel in terms of the alleged inconsistencies are such as go to the merits of the case and may be relevant at the time of the trial, when the prosecution leads its evidence. The matters raised are not of such a nature that can be regarded as relevant for the purposes of a bail application.

6. In view of the foregoing, I am satisfied that since the bail applicants have been unable to make out a fit and proper case, they are not entitled to the concession of bail. This application is therefore hereby dismissed. H.B.T/M-47/K Bail refused.