2021 PLP 47 (YLRN)

MUHAMMAD SALEEM JESSAR, J.

By means of this Crl. Bail Application, applicant Bagar Shah son of Noor Muhammad Shah, seeks his release on post arrest bail in case emanating from Crime No.27 of 2019, registered at Police Station Dokri, for offences under sections 302, 120-B, 34, P.P.C., after his bail plea has been declined by the learned I-Additional Sessions Judge, (MCTC), Larkana, vide impugned order dated 07.04.2020.

2. The case has been challaned by the police on 31.07.2019, which is now pending for trial before the Court of 1st. Additional Sessions Judge, (MCTC), Larkana, vide Sessions Case No.471/2019 (re-State v. Taniya Khokhar and others.

3. Briefly case of prosecution, as per FIR, lodged by complainant Waheed Ali is that he and his brother Saeed Ahmed used to sell chips etc. They and their father had adopted/guarded Mst.Tania, aged about 18/19 years, but she developed illicit relations with accused Baqar Shah. Complainant's brother Saeed Ahmed had such knowledge, who had also informed such facts to the complainant. The complainant made such complaint to elders of accused Baqar Shah, to which he was annoyed. On 06.06.2019 complainant, his cousin Abdul Rasheed and Pufat (second paternal cousin) Ayaz Ali, on the eve of Eid were available at their shop of flour machine and chit chating. Complainant's brother Saeed Ahmed was also available at his shop of chips near flour machine. At 12:30 a.m. (night) they heard cries of Saeed Ahmed, hence rushed towards spot, where they saw and identified on bulb light everyone Baqar Shah, Ali Taqi Shah and Taniya having knives (Chhuriyon), so also two unidentified persons with open faces having pistols, who will be identified, if seen again, Unidentified persons having pistols directed the complainant party not to go near to them else they would be done to death. Accused Baqar Shah caused knife (chhury) blow to complainant's brother Saeed Ahmed at left side of his chest near heart and another injury at his hand, blood started oozing. Accused Ali Taqi Shah also caused knife (chhury) blow to complainant's brother Saeed Ahmed at his right flank and blood started oozing. Accused Mst. Taniya also caused knife (chhury) blow to complainant's brother Saeed Ahmed at his left flank and blood started oozing. All three accused having knives also caused injuries on different parts of the body of complainant's brother, who fell down on ground. Thereafter, all accused escaped away through vehicle. Subsequently complainant shifted his injured brother to PS Dokri, wherefrom after obtaining letter for medical treatment, he shifted him at Taluka Hospital Dokri, however, his brother succumbed to his injuries. The complainant by leaving PWs over dead body appeared at PS and lodged instant FIR to the above effect.

4. After registration of the case, investigation was entrusted to ASI/I.O. Azhar Ali Jhatiyal, who during course of investigation had arrested the applicant on 10.06.2019. However, after completion of legal formalities, interim challan of the case was filed on 24.06.2019 and final challan though was submitted on 29.07.2019 yet it was accepted by the learned Magistrate on 31.07.2019. DIGP Larkana, constituted JIT under his office order bearing No.24687-91 dated 14.06.2019, headed by ASP/SDPO Hyderi, Larkana. The JIT after taking police papers had recorded statements of Defense Witnesses/DWs on 18.07.2019.

5. Mr. Athar Abbas Solangi, learned advocate for the applicant submits that the applicant claims his bail on rule of consistency as the co-accused Ali Taqi Shah, having identical role has been granted post arrest bail by the trial Court/5th Additional Sessions Judge, Larkana, on 27.08.2019 vide Cr. Bail Appln. No.1093/2019. He next points out that ocular version is belied by the medical evidence, therefore, version of the complainant cannot be believed in toto to withhold the concession of bail to an accused; more particularly, when head of the JIT on the basis of statements of D.Ws had recommended his release being an innocent and subsequently was bailed out by the Court of competent jurisdiction. He next submits that the case of applicant is at par with the case of co-accused therefore, he may also be enlarged on bail on the rule of parity. In support of his contentions he has placed his reliance upon the cases of Abid v. The State and others (2016 SCMR 907), Muhammad Daud and another v. The State and another (2008 SCMR 173), Muhammad Azam v. The State (2008 SCMR 249). He therefore, prays for grant of instant bail application.

6. Mr. Ali Anwar Kandhro, learned Addl. P.G, appearing for the State opposes the bail application on the ground that per FIR, the applicant had allegedly caused knife blows to deceased over his chest and that part of his body involves with heart, hence is vital part of the body. He has focused upon the medical evidence while pointing out injuries Nos.1 and 2 and submits that claim of the applicant to the extent that ocular version is belied by medical version, in view of Medicolegal certificate/ postmortem notes carries no weight. He further submits that if contention so raised by learned counsel for the applicant may be taken into consideration even then it tantamount to deeper appreciation, which is not permissible at bail stage. He therefore, opposes the bail plea.

7. Mr. Safdar Ali Ghouri, learned counsel for the complainant while adopting submissions advanced by learned Addl. P.G. also opposes the bail plea and submits that after completion of entire investigation, final challan was submitted and subsequently accepted by the Court of competent jurisdiction and the case was subjudiced before the Court hence JIT constituted by the DIGP Larkana, at belated stage is not warranted by the law. He has drawn attention of the Court to the statements of DWs recorded before the Head of JIT on 18.07.2019 i.e. with the delay of about 41 days from the date of arrest of the accused/applicant as well as incident. He also submits that JIT duly constituted gets no support or sanction by the law or any statute and at the most, it can be termed to be report under section 173, Cr.P.C. He further submits that if the version of the police/I.O/JIT is presumed to be true even then police opinion is not binding upon the Court. In support of his contentions he has placed his reliance upon the case of Sardar Munir Anmed Dogar v. The State PLD 2004 SC 822 head note (a). Mr. Ghouri, points out that offensive weapon was also shown to have been produced by the accused during investigation on 19.06.2019. As far as claim of the applicant of his release on the ground of rule of consistency is concerned, he points out that co-accused was bailed out by the Court of learned 5th Additional Sessions Judge, Larkana, on the ground of his being released by the JIT during investigation and subsequently the police opinion was not believed by the concerned Magistrate vide order dated 31.07.2019 when he was ordered to be arrayed as an accused. In support of his contentions he has placed his reliance on cases of Nazar alias Nazar Ahmed v. The State (2008 YLR 2791), Zaheer Ahmed v. The State (2015 MLD 992) and Inayat alias Inayatullah v. The State (2016 YLR 2629). He prays that bail application in hand being devoid of its merit may be dismissed.

8. I have heard Mr. Athar Abbas Solangi, learned counsel for the applicant, Mr. Safdar Ali Ghouri, advocate, for the complainant and Mr. Ali Anwar Kandhro, learned Addl. P.G. and have gone through the material made available before me on record.

9. Admittedly, the applicant is nominated in promptly lodged FIR with specific role of causing knife blows to deceased over his chest and other part of the body. The offensive weapon was also shown to have been produced by the accused during course of the investigation. The opinion of police officer, particularly JIT report which was constituted after submission of final challan of the case cannot be said to be in accordance with law as after submission of the challan, the police was supposed to have had permission from the Court concerned and during pendency of the case before Judicial forum, particularly after submission of challan, the police was not competent to advance second opinion again by passing an opinion of police officer I.O. of the case. As far as plea of alibi taken by the applicant through D.Ws, who were examined by the Head of JIT on 18.07.2019 at belated stage itself is sufficient to discard their version. Moreover, the names of D.Ws are not nominated in the FIR as witnesses and the witnesses who have been nominated by the complainant in his FIR have fully supported the case of prosecution. It is well settled law that opinion of police officer is not binding upon the Court. In the case of Safdar Muneer Ahmed Dogar (supra), the Hon'ble apex Court has observed that opinion of police about innocence of accused is ipsi dixit which would not be accepted by Court even at bail stage. Moreover, the JIT report through which co-accused was let off had subsequently been joined by the Magistrate concerned, therefore, such plea particularly at belated stage is an immaterial aspect. The case is being tried by the Model Criminal Trial Court (MCTC), therefore, it is expected that it should be concluded within shortest possible time. The motive has specifically been shown by the complainant against present applicant which has not been challenged by him during investigation, thus his case does not require within the ambit of further enquiry or the probe within the meaning of subsection (2) of section 497, Cr.P.C. The authorities relied upon by the learned counsel for the applicant, are distinguishable from the facts and circumstances of present case. In the reported case of Muhammad Daud and another (supra), relied upon by the learned counsel for the applicant, the accused was granted bail on principle of consistency as his co-accused were already admitted to bail on merits and had similar case but in the present case the grounds for bail on behalf of applicant are different from his co-accused. In another case of Muhammad Azam (supra), six accused were nominated. During the course of investigation four accused were found to be innocent and their names were shown in column No.2. Out of these four, three were granted bail while one was declined, who sought bail and the Hon'ble apex Court admitted him to bail on the principle of consistency, therefore, this authority relied upon by the learned counsel for the applicant is inapplicable with the facts and circumstances of the present case. The last case law relied upon by the learned counsel for the applicant is the case of Abid (supra), in this case the injuries attributed to the accused fell within the purview of sections 337-F(i) and 337-A(i), P.P.C., which were bailable offences and co-accused who had also been attributed firearm injuries had already been allowed bail, therefore, the Hon'ble apex Court released the accused on bail on the ground of rule of consistency, but in the instant case, the present accused is attributed with role of causing "Chhury" (knife) blow over the chest near the heart which is vital part of the body and also caused other injuries and as per postmortem report the cause of death is loss of blood, therefore, this citation is of no help to accused.

10. The upshot of the above dis-cussion is that the applicant has got no case for his release on bail during pendency of the trial. Consequently, instant bail application is hereby dismissed.

11. 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.

12. Let a copy of this order be communicated to learned trial Court with directions to conclude the trial expeditiously. JK/B-14/Sindh Application dismissed.