2025 PLP 1702 (MLD)

Riazat Ali Sahar, J.

Through the captioned bail application under Section 497, Cr.P.C, the applicant is seeking his admission on post arrest bail in Crime No.83 of 2023 registered at P.S Khadhar offences punishable under Sections 302, 324, 337-H(ii) P.P.C..

2. The complainant, Tarique Aziz, lodged the present FIR, stating that his father, Muhammad Siddique Zardari, had purchased 06-00 acres of agricultural land from Ghulam Irtaza alias Shahrukh Unar, for which the full sale consideration had been paid. However, a dispute later arose between Ghulam Irtaza and the complainant's father regarding the khata (ownership record) of the said land, which caused Ghulam Irtaza to become hostile towards him. On the day of the incident, the complainant, along with his father, Muhammad Siddique Zardari, and other relatives, Asghar Ali and Wahid Ali, was present at their land near Village Umar Bodleja, engaged in water irrigation. Meanwhile, the complainant's father was conversing with his friend, Muhammad Ismail, a resident of Village Ghulam Rasool Shah Colony, Nawabshah. At about 07:30 a.m., four armed accused persons namely Ghulam Irtaza alias Shahrukh Unar armed with a rifle, Rehman armed with a repeater, Kashif alias Tomi armed with a repeater and an unknown person armed with a repeater appeared at the scene. Upon arrival, the accused raised Hakkals (shouted loudly) and, with the intent to commit murder, opened indiscriminate fire on the complainant's father, Muhammad Siddique Zardari, and his friend, Muhammad Ismail. As a result, both sustained firearm injuries and collapsed to the ground while crying. The complainant and his relatives pleaded for mercy in the name of Allah, as such, the accused fled the scene on their motorcycles while firing in the air. The complainant's father, Muhammad Siddique Zardari, sustained gunshot wounds on his abdomen and right thigh, causing severe bleeding, whereas Muhammad Ismail also suffered a firearm injury on his abdomen, with blood plentifully oozing from his wound. Realizing the gravity of the situation, the complainant arranged transport and immediately rushed both injured persons to the hospital. However, on the way, his father, Muhammad Siddique Zardari, succumbed to his injuries. The complainant informed the police, who issued a letter for medical treatment, after which the injured Muhammad Ismail was shifted to PMCH Nawabshah for further treatment. Meanwhile, the body of the deceased was taken to Taluka Hospital Sakrand, where the police of P.S Khadhar conducted the postmortem examination. Upon completion, the body of the deceased was handed over to the complainant for burial. After the funeral ceremony, the complainant proceeded to P.S Khadhar and lodged the present FIR against the accused.

3. Learned counsel for the applicant has contended that the applicant has been falsely implicated in this case by the complainant with mala fide intention and ulterior motives; that the FIR has been delayed by more than 16 hours, and no plausible explanation has been furnished for such a delay, raising serious doubts about the prosecution's version of events; that no motive has been assigned to the applicant for the alleged murder of the deceased, further weakening the case against him; that the complainant has managed a false and fictitious story in connivance with the witnesses who were not actual eye-witnesses to the incident; that neither the complainant was present at the place of occurrence nor is he an eye-witness to the incident, rendering his version of events questionable; that one Asghar Ali informed the police on 10.11.2023 at 1000 hours that his cousin Muhammad Siddique had expired due to receiving firearm injuries and on his information, the police reached the Taluka Hospital Sakrand; that the FIR does not mention the presence of the complainant and his witnesses at the scene, thereby creating doubts regarding the occurrence of the alleged incident as narrated; that the applicant, along with three co-accused, is alleged to have made direct firing upon the deceased and the injured prosecution witness, however, it remains unknown which specific fire of the four accused hit the deceased and the injured PW; therefore, the role assigned to the applicant for firing upon the deceased is doubtful; that all prosecution witnesses are close relatives of the complainant, further raising concerns regarding their impartiality and credibility; that the case has already been challaned and the applicant is no longer required for further investigation; that keeping the applicant in jail for an indefinite period would not serve any purpose for the prosecution. In support of his submissions, learned counsel has relied upon the cases of Nooruddin and another v. The State (2005 MLD 1267), Kouro and another v. The State (2004 YLR 2434), Mukaram v. The State and another (2020 SCMR 956) and Sikandar Hayat v. The State and another (2022 SCMR 198).

4. Learned Counsel for the complainant has opposed the bail application, contending that the applicant, along with co-accused, is specifically nominated in the FIR with a clear role in causing injuries to the complainant's father and injured prosecution witness and as a result of these injuries, the father of the complainant succumbed to injuries and PW Muhammad Ismail sustained injuries; that the FIR was lodged promptly after the incident and any delay in its registration was due to the funeral ceremony of the deceased; that the statements of the prosecution witnesses recorded under Section 161, Cr.P.C., as well as the medical evidence, fully supported the ocular account narrated in the FIR; that the offence committed by the applicant is of a heinous nature, punishable by death or life imprisonment and falls within the prohibitory clause of Section 497, Cr.P.C. He further contended that keeping in view the heinousness of the offence and the strong prosecution evidence, the applicant is not entitled to the concession of bail. In support of his arguments, the learned counsel has relied upon the cases of Itbar Muhammad v. The State and others (2024 SCMR 1576), Naeem Sajid and others v. The State through Prosecutor General Punjab and another (2025 SCMR 129), Allah Dewayo Shahani v. The State through Prosecutor General, Sindh (2023 SCMR 1724), Bilal Khan v. The State through P.G Punjab and another (2020 SCMR 937), Waleed Arfaqat v. The State and another (2021 MLD 1226) and Imtiaz v. Azam Khan and others (2021 SCMR 111).

5. Learned DPG has adopted the arguments advanced by the learned counsel for the complainant and further contends that the applicant is directly nominated in the FIR with a specific role in the commission of the offence, which resulted in the death of the complainant's father and injuries to the prosecution witness. He further contended that the statements of prosecution witnesses recorded under Section 161, Cr.P.C. corroborate the version narrated in the FIR and the medical evidence further supports the prosecution's case and that grant the bail to the applicant at this stage may hamper the trial and pose a serious threat to the prosecution witnesses; hence, the applicant is not entitled to any concession of bail, as the evidence on record, prima facie, connects him with the commission of the offence. He has prayed for dismissal of bail application.

6. I have heard learned counsel for the applicant, learned counsel for the complainant as well as learned D.P.G. Sindh representing the State and perused the entire material available on record including the cases cited at the bar.

7. A meticulous examination of the record reveals that the applicant, Kashif alias Tomi, has been specifically nominated in the FIR with a defined and active role in the commission of the offence. The complainant and eye-witnesses have consistently alleged that the applicant, along with co-accused, being armed with a firearm, launched a deliberate and premeditated assault on the deceased, Muhammad Siddique Zardari, resulting in his death, and caused firearm injuries to PW Muhammad Ismail. The statements recorded under Section 161, Cr.P.C. are in line with the version advanced in the FIR and stand corroborated by the medical evidence. The post-mortem report confirms that the deceased sustained multiple firearm injuries, which were sufficient to cause death in the ordinary course of nature. Similarly, the medico-legal certificate of the injured witness supports the allegation of gunshot wounds. The ocular and medical evidence are consistent and mutually reinforcing, leaving no apparent contradiction. As for the delay of approximately 16 hours in lodging the FIR, the explanation offered that the complainant and his family were initially occupied with the funeral rites of the deceased is both plausible and in consonance with normal human behaviour under such distressing circumstances. The Hon'ble Supreme Court of Pakistan has repeatedly held that minor delays in lodging the FIR in cases involving grave offences, particularly homicide, do not cast serious doubt on the prosecution's case, especially where the delay has been reasonably explained and the ocular account is corroborated by medical evidence. Reference in this regard may be made to Bilal Khan v. The State (2020 SCMR 937), wherein it was held that delay in FIR registration per se does not dilute the credibility of the prosecution's case when supported by reliable evidence. In light of the foregoing, the applicant does not merit the concession of bail at this stage.

8. Undoubtedly, the offence with which the applicant is charged falls under Sections 302 and 324, P.P.C., which is punishable with death or life imprisonment; however, it is well-settled principles of law that when an offence falls within the prohibitory clause of Section 497, Cr.P.C., bail cannot be granted as a rule but only as an exception under extraordinary circumstances. However, no such exceptional circumstances have been demonstrated by the applicant to justify the grant of bail.

9. In the instant case, the existence of motive is another strong factor against the applicant as the disputed occurred over the ownership record (Khata) of agricultural land, which created antagonism between the accused and the complainant's father and ultimately this dispute resulted to this tragic incident. It is worthwhile to note that in such circumstances, the Courts have repeatedly held that when a clear motive is present and linked to the commission of the offence, it serves as an additional incriminating factor, which reduces the chances of false implication.

10. The defence has sought to argue that the identity of the assailant whose gunfire struck the deceased and the injured prosecution witness remains unascertained, thereby attempting to introduce uncertainty with respect to the applicant's individual role. However, this line of argument is devoid of legal merit in light of the settled doctrine of constructive liability enshrined under Section 34 of the Pakistan Penal Code. The record clearly reflects that all four accused persons, including the applicant, acted in concert, arrived together at the scene of the occurrence, and indiscriminately opened fire upon the victims with lethal intent. In such circumstances, where the assailants shared a common intention to commit a homicidal assault, it is not legally requisite to establish whose bullet specifically caused the fatal or injurious wounds. The principle of joint liability imputes equal responsibility upon all participants in the commission of the crime. Moreover, in the present case, the prosecution has attributed a specific role to the applicant in opening fire upon the victims, thereby directly implicating him in the offensive act. It is also a settled principle of law that once a person voluntarily discharges a firearm towards a human target and that target sustains injury or death, intention or knowledge as contemplated under Section 324 or 302, P.P.C. is sufficiently manifested. In this regard, reference may be made to the judgment of the Honourable Supreme Court of Pakistan in Sheqab Muhammad v. The State and others (2020 SCMR 1486), wherein it was held: "Once the trigger is pressed and the victim is effectively targeted, 'intention or knowledge' as contemplated by Section 324, P.P.C. is manifested; the course of a bullet is not controlled or steered by the assailant's choice nor can he claim any premium for a poor marksmanship." The ratio of the above decision is fully attracted to the facts of the present case, where the applicant is alleged to have been an active participant in a coordinated assault using firearms. Given the specific allegation and the settled position of law regarding shared criminal intention and direct action, the applicant cannot absolve himself merely on the plea of indeterminate bullet trajectory. Accordingly, the applicant has failed to make out a case for the concession of bail, which, in view of the above discussion and precedent, is liable to be declined.

11. In the case of Itbar Muhammad v. The State (2024 SCMR 1576), the Honourable Supreme Court has held that: "

7. On perusal of record it reflects that this is a case in which one person has lost his life and one person has sustained injuries at the hands of accused persons. Furthermore, the petitioner/accused along with another accused was nominated in the FIR and specific role of firing at the deceased and injured person was attributed to petitioner specifically. P.Ws in their statements have supported the version of the complainant given by him in the FIR. The medical evidence also corroborates the ocular account."

12. Furthermore, reliance may be placed on the judgment of the Honourable Supreme Court in Allah Dewayo Shahani v. The State (2023 SCMR 1724), wherein it was unequivocally held that bail ought not to be granted in cases involving the offence of murder when the accused is nominated with a specific role, particularly where the ocular account is consistent and corroborated by medical evidence. In the said precedent, six accused persons were named with assigned roles in a coordinated assault resulting in homicide, and the Court refused bail, finding that the specific attribution of roles coupled with supporting evidence rendered the case one of deeper probative value requiring trial. The Supreme Court observed that in such serious offences involving direct and active participation, the question of granting bail does not arise merely on the basis of procedural or evidentiary doubts, unless material contradictions are apparent at a preliminary stage. Applying the same reasoning to the present case, where the applicant is similarly nominated with a specific role of having used a firearm resulting in the death of one person and injuries to another, and where the ocular and medical evidence are in harmony, the case is squarely covered by the ratio of Allah Dewayo Shahani (supra). In such circumstances, the grant of bail would be premature and against the settled principles of criminal jurisprudence, particularly in cases involving offences under Section 302, P.P.C. read with Section 34, P.P.C..

13. Reverting to the defence plea that the prosecution case is weak and, therefore, bail should be granted, suffice it to say that such contention does not carry weight in the present circumstances. Prima facie, the prosecution has established a strong case against the applicant, supported by consistent ocular testimony, corroborated by medical evidence, and underpinned by a discernible motive. The accused has been specifically named in the FIR with an assigned role in the commission of the offence. In view of this, the applicant has failed to bring his case within the purview of "further inquiry" as envisaged under Section 497(2), Cr.P.C. It is a settled proposition of law, as consistently held by the Honourable Supreme Court of Pakistan, that where there exists strong prima facie evidence connecting an accused with the commission of a capital offence-particularly in cases of murder where the accused is directly nominated with a specific role the concession of bail cannot be extended merely on generalised assertions regarding the alleged weakness of the prosecution's case. In such situations, the depth and weight of evidence are to be assessed at trial, and not at the bail stage.

14. In respect to the nature of the allegations, the accused being armed at the time of the incident and the eye-witnesses being close relatives of the deceased, there is a real and imminent risk that granting bail may result in undue influence on the witnesses or possible abeconding of the applicant. The Supreme Court of Pakistan has cautioned against granting bail in cases where there exists a likelihood of tampering with evidence or influencing witnesses, particularly when dealing with heinous crimes.

12. In view of the above facts and circumstances, no case for the grant of bail is made out. The applicant, Kashif alias Tomi, is prima facie connected with the commission of the offence and the prosecution case is supported by ocular, medical and circumstantial evidence. The offence falls under the prohibitory clause of Section 497, Cr.P.C., and no extraordinary circumstances exist to justify the concession of bail. The case law cited by the learned counsel is not applicable in the instant matter, as each case must be examined on the basis of its own facts and circumstances.

13. For what has been discussed above, instant criminal bail application is dismissed. JK/K-11/Sindh Application dismissed.