2021 PLP 2000 (MLD)

MUHAMMAD IQBAL KALHORO, J.

Applicant, who has been transposed as an accused at a later stage has disclosed in FIR registered at Police Station Shah Latif Town, Karachi that when he after withdrawing an amount of Rs.10,00,000/- (Rupees ten lac only) from the Bank was returning to home in his vehicle along with his son Hassan Ali Shah, was waylaid by the deceased and his three accomplices, who attempted to commit robbery and fired at them. He in his self-defence fired at the deceased injuring him seriously causing his accomplices to flee.

2. Later on, brother of deceased also lodged a crime report at the same Police Station alleging cold blood murder of his brother at the hands of applicant. In the ensuing investigation held by a JIT ordered by this court in various petitions filed by the parties against each other, FIR lodged by brother of deceased was disposed of in view of an already lodged FIR of the incident. But the applicant was arraigned and referred to trial for the offences, among others, under section 302, P.P.C., which prima fade show that his plea of self-defence was not found persuasive by Investigating Officer.

3. This application for post-arrest is third attempt of the applicant before this court and his earlier efforts to that end have been frustrated up to the Honourable Supreme Court, which vide an order dated 22.01.2020 in Criminal Petition No.1337/2019, in addition, however, asked the trial court to proceed with the trial expeditiously and not to grant unnecessary adjournment to the complainant and the prosecution.

4. Learned defence counsel has argued the case of the applicant for bail in the said context and has relied upon the case laws reported in 2016 YLR 1503, 2011 PCr.LJ 120, 2016 MLD 1995 and 2017 PCr.LJ

8. Learned counsel for the complainant and learned APG have however opposed relief to the applicant on the ground that the trial is in full swing and all the material witnesses from the deceased's side except one or so have been examined and therefore the trial is likely to conclude in near future.

5. We have heard learned counsel for the parties and perused the material available on record including the case laws cited at bar. Applicant' plea of self-defence was neither accepted at investigation stage nor was he successful in convincing this court in this regard previously. He is not disputing firing at the deceased, who as per medical record, received as many as five fire arm injuries on his person, whereas no harm was caused to the applicant or his witnesses or anyone around in the incident. Firing five times on the deceased does not seem to commensurate with the plea of the applicant and his further act of not allowing the deceased to be taken to the hospital timely speaks of rather an approach different than the one pleaded by him and apparently was in transgression of the fine line between self-defence and aggression. Any declaration contrary to the charge even at this stage has a chance to jeopardize the case prematurely. Further in our view, plea of self defence can only be settled after recording of evidence of the parties by the trial court and is beyond the scope of tentative assessment permitted at bail stage.

6. Besides, reportedly, 17 prosecution witnesses have been given up and 04 witnesses have been examined by the trial court from the side of deceased and now except a couple of witness, the applicant has to lead his evidence in the trial. At this juncture granting bail to the applicant would be against the ratio laid down by the Honourable Supreme Court of Pakistan in the case reported in 2011 SCMR 1332 in addition to prima facie merits of the case stated above. We therefore, instead of extending concession of post-arrest bail to the applicant would like to direct the trial court to examine remaining witnesses expeditiously preferably within a period of two months and decide the case. Since, it has been informed that on expiry of tenure of Presiding Officer, the trial court has fallen vacant, we transfer this case to the learned Anti-Terrorism Court No.IV, at Karachi for further proceedings and to comply with the above directions.

7. The bail application is disposed of in the above terms; the findings made hereinabove are tentative in nature and would not prejudice case of either party at trial. JK/A-13/Sindh Case transferred.