2014 P Cr (PLP)

SALAHUDDIN PANHWAR, J.

The applicant/accused Inayat Shah seeks post-arrest bail in Crime No.330 of 2011 of Police Station, Ubauro for offences punishable under sections 302, 324, 337-H(2), 114, 147, 148 and 149, P.P.C.

2. The relevant facts as setout in the F.I.R. are that on 4-9-2011 at 1330 hours, he along with his brother Syed Muhammad Akhtar Shah, Advocate, his sons Sabir Hussain Shah, Adnan Shah and mother Mst. Banni alias Fatima Bibi were sitting in their house, when, accused Safdar Shah, Ramzan Shah, Rizwan Shah, Inayat Shah with Pistols, Akber Shah, Asghar Shah with Repeaters, Liaquat Shah with Rifle, Adnan with lathi, Kamran Shah, with Pistol, Roman Shah with lathi, and 4 unidentified persons with Pistols entered into his house. Out of them accused Safdar Shah raised hakal and asked that they shall teach a lesson to them (complainant party) as they have not vacated the shop and plot: instigated others to kill them; accused Safdar Shah caused direct Pistol fire upon his brother Syed Muhammad Akhtar Shah which hit him; accused Ramzan Shah caused fire which also hit his brother and he fell down on the ground; accused Akber Shah and Asghar Shah caused direct fire shots of Repeater, which also hit his brother; accused Rizwan Shah fired Pistol shot which too hit his brother; accused Liaquat Shah made gun fire which hit his brother; accused Khursheed Shah made pistol fire which hit his brother; his mother Mst. Banni alias Fatima Bibi tried to go forward, in the meantime, accused inayat shah caused pistol shot injury, which hit her on chest.

3. Counsel for applicant/accused inter alia contended that allegation against the applicant/accused is that he caused firearm injury to Mst. Rani alias Fatima Shah which injury was not fatal injury; applicant/accused has not caused any injury to deceased; applicant/accused is in jail since one year, without any progress in case; time of incident is conflicting in prosecution case, therefore, case falls within the scope of further inquiry. He has relied upon the case-law reported in PLD 1995 SC 34, 2009 YLR 2300, PLD 1972 SC 277.

4. Conversely Mr. Abdul Rehman Koalchi, learned A.P.G and Mr. Shamsuddin. N. Kobhar, counsel for complainant has argued that applicant/accused is specifically named in the F.I.R.; applicant/accused has caused fatal shot on chest of 70 years old lady which is a vital part; recovery of pistol has been effected from the applicant/accused.

6. Heard counsel and perused record.

7. After meticulous examination of the police papers, it is manifest that applicant/accused along with other co-accused, having armed themselves with lethal weapons, intruded in the house of complainant and in consequence thereof one man lost his life. No doubt, the applicant/accused is not alleged to have caused any fire arm injury to the deceased but he is specifically alleged to have caused pistol shot injury to the P.W Syed Fatima Shah aged about 70 years, who had stepped forward to save life of his son. The injury, attributed to applicant/accused, is on the chest of P.W. Mst. Fatima Shah, which, cannot be said to be a non-vital part of the body. The alleged injury falls within prohibitory clause of subsection (1) of section 497, Cr.P.C.; statements of P.Ws. and medical evidence connect the applicant/accused with commission of the offences with which he stands charged. The minor contradictions in prosecution case, referred by counsel for the applicant/accused or question of vicarious liability in peculiar circumstances of this case, can not be considered at this stage: it would amount to deeper appreciation of evidence and material available on record, which is not permissible, at bail stage, therefore, I am of view that prima facie reasonable grounds are in existence against the applicant/accused that he has committed offence falling within prohibitory clause of subsection (1) of section 497, Cr.P.C hence he is not entitled for post-arrest bail.

8. Regarding Case-law relied by counsel, it is worth to add here that such precedents are on different facts and circumstances and such ratio of decidendi is not applicable in instant case. Above are the reason of my short order dated 24-12-2012. AG/I-14/K Bail refused.