2023 PLP 67 (YLRN)

ZULFIQAR ALI SANGI, J.

Applicant Sabz Ali, seeks post arrest bail in Crime No.33/2017 registered at Police Station Napar Kot for offences punishable under sections 302, 324, 148, 149, 114, 429, P.P.C. He had moved his bail application before the learned Sessions Judge, Shikarpur, same was dismissed vide order dated 21.10.2020, hence the present application.

2. The brief facts of the prosecution case as disclosed in the FIR by the complainant Mst. Khanzadi, are that on 07.08.2017 at 1300 hours, she lodged FIR stating therein that there is dispute between them and accused Ahmed Ali Jatoi. Few days prior to registration of this case, she went to see her brothers. On 31.07.2017, her brothers Qadir Bux, Akhtiar and Karim Dino took cattle for grazing. She took meals to them. At 1200 hours there came accused Ahmed Ali, Noor Hassan, Ali Hyder, Wahid Ali, Jumo having K.K rifles, Sabz Ali, Rasheed and 03 unknown persons having guns. On the instigation of Ahmed Ali, accused Ali Hyder fired at Qalandar Bux, accused Noor Hassan fired at Karim Dino and Sabz Ali fired at Akhtiar. All three persons sustained injuries and fell down. The fires also hit to cows. The accused then went away. Complainant party found Qalandar Bux lying dead while Karim Dino and Akhtiar were lying injured. Injured were rushed to Hospital and then complainant came and lodged FIR on 07.08.2017 at 1300 hours.

3. Mr. Shahbaz Ali Khan Brohi, learned counsel for the applicant has contended that the applicant is innocent and has been implicated falsely. He has further contended that there is delay of about seven days in lodging the FIR which has not been plausibly explained by the complainant party. Learned counsel further contended that the role ascribed to the present applicant as per FIR is that he fired upon injured/P.W Akhtiar and not upon deceased Qalandar Bux and the applicant did not repeat his gunshot fire upon the injured/P.W. Hence, he prays that bail application may be allowed and applicant may be released.

4. On the other hand Mr. Muhammad Noonari, learned D.P.G has opposed the grant of bail on the ground that the name of the present applicant transpires in the FIR with specific role of causing firearm injuries upon injured P.W Akhtiar and in this case one person, namely, Qalandar Bux has lost his life. He has further contended that P.Ws in their 161, Cr.P.C statements have fully supported the prosecution version. He has also contended that the offence with which the accused is charged falls within the prohibitory clause of section 497(1), Cr.P.C, therefore, the applicant, in any manner, is not entitled for the concession of bail.

5. I have carefully considered the arguments advanced by the learned counsel for the applicant and learned D.P.G and perused the material available on record.

6. Admittedly the name of the present applicant transpires in the FIR with specific role of causing gunshot injury upon P.W Akhtiar and in this unfortunate incident one person, namely, Qalandar Bux has lost his life and two persons received firearm injuries. The perusal of FIR reveals that there is direct allegation against the present applicant of making fire upon the injured person which is supported by the medical evidence. Furthermore, during their firing three cows were also received firearm injuries. The incident was of daytime incident and the parties knew each other prior to the occurrence and there is no question of mistaken identity. There is no any contradiction on the ocular evidence and medical evidence in respect of the injury sustained by the injured Akhtiar from the hands of the applicant and there is also no reason for false implication of the applicant. Supreme Court in case of Sheqab Muhammad v. The State and others (2020 SCMR 1486), has held as under:-

3. Arguments that ocular account stands contradicted by medical evidence and in the absence of an independent witness from the public, petitioner's general participation, resulting into an injury on a non-vital part of the body, particularly in the absence of repeated fire shot, squarely brings his case within the remit of further probe, are not only beside the mark but also cannot be attended without undertaking an in-depth analysis of the prosecution case, an exercise forbidden by law at bail stage. In a daylight affair, two persons sustained firearm injuries besides the one having endured violence through blunt means and as such requires no public support to drive home the charge; their statements supported by medical examinations of even date, cumulatively bring petitioner's case prima facie within the mischief of section 324 of the Pakistan Penal Code, 1860, hit by statutory prohibition, in view whereof, he cannot be released on bail in the absence of any consideration within the purview of subsection (2) of section 497 of the Code ibid. Similarly, murderous assault as defined in the section ibid draws no anatomical distinction between vital or non-vital parts of human body. Once the triggered is pressed and the victim is effectively targeted, "intention or knowledge" as contemplated by the section ibid is manifested; the course of a bullet is not controlled or steered by assailant's choice nor can he claim any premium for a poor marksmanship. Exercise of discretion by the High Court being well within the bounds of law calls for no interference. Petition fails. Leave declined.

7. As regards to the contention of the learned counsel for the applicant that there is delay of seven days in lodging the FIR is concerned, in this regard it is observed that at the first instance complainant party was busy in saving the lives of injured persons, thereafter approached police station for registration of FIR, however, after the incident complainant party immediately approached the police got latter for the treatment of the injured persons, therefore, in these circumstances the delay if any is not fatal to the prosecution case at the bail stage. Further the incident took place on 31-07-2017 and the applicant was arrested on 10-08-2020 he remained fugitive from law for about three years. Supreme Court in case of Noor Bakhsh v. The State (2020 SCMR 1205) has held as under:-

3. Petitioner stayed away from law for a period exceeding half a decade and was finally arrested on 3.2.2020; being a fugitive from law, that too for a pretty long period of time, he has disentitled himself to the concessions, ordinarily extended in discretion to an offender. While it is for the trial Court to determine the cause of death and consequences thereof, the case initially set up in the crime report, supported by the statements of the witnesses and medical evidence constitutes 'reasonable grounds' within the contemplation of section 497 of the Code of Criminal Procedure 1898 with space for further probe or inquiry in absence whereof, he cannot be released on bail even on that score. Petitioner's last attempt in the High Court through a subsequent petition without any fresh ground has rightly been declined, calling for no interference by this Court. Petition fails. Leave declined.

8. All the eye-witnesses including the injured witnesses supported the case in their statements under section 161, Cr.P.C and at this stage there is sufficient material available with the prosecution against the applicant which prima facie connects the applicant with the commission of offence punishable with death or imprisonment for life and the same fall within the prohibitory clause of section 497, C.P.C. disentitling the applicant from grant of the bail. Under these circumstances, I am of the considered view that the applicant is not entitled for the concession of bail and the same is dismissed.

9. Needless to mention here that the learned trial Court shall not be influenced by observations made in this order while deciding the case of the applicant as the observations made hereinabove are tentative in nature. JK/S-37/Sindh Bail dismissed.