1991 PLP 1362 (MLD)

Sanaullah and 3 others v. The State 1983 S C M R 15 ref. Kazi Azizullah for Applicant. Riaz Aimed for A.A.-G. for the State. The present applicant is facing trial before the Sessions Judge Naushahro Feroze for the offences under sections 302, 307, 148 and 149 read with section 13-D of Arms Ordinance in Crime No.32/90 of Police Station Korai, District Naushahro Feroze. According to the F.I.R. lodged by Sono son of Achar on 14-12-1990, he alongwith his brother Gaman and son Kirial aged 12 years were going to attend feast and at about 12-30 noon when they reached the street in which the house of Ali Murad is situated they saw the accused Ghulam Mustafa, Abbas, Ali Nawaz, Urs and Muhram coming from opposite direction. Accused Muhram was armed with rifle and all others with guns. They abused the complainant party and told that they had murdered Suleman Nothom the cousin of accused persons and in order to avenge the same, the complainant party would not be spared. Accused Muhram Greet from his rifle pointedly at Gaman which hit his neck. The complainant party raising cries ran towards the house of Ali Murad. His brother fell down and the other accused persons fired at him with their guns with the result that Gaman sustained injuries on his chest and other parts of the body and his son Karial also sustained injuries on his chest. The accused then ran away toward their houses raising slogans that they had avenged the murder of Suleman. In the meantime on fire-arm report and cries, complainant's cousin Parial and Ali Murad came running and they also saw the accused firing. Gaman died due to fire-arm injuries. The learned counsel for the applicant has contended that out of the above-named accused persons named in the F.I.R. four of the accused have been found innocent during investigation. Thus the version of the prosecution has been found to be false with regard to the majority of the accused and as such the version of the prosecution has lost its sanctity. In support of the above submission the learned counsel has relied upon the case of Amjad and another v. The State 1982 S C M R

955. In the said case it was observed that no sanctity can be attached to the version given in the F.I.R. when the same has been found to be false with regard to the majority of the accused. It was further observed that the petitioners before the Court had only been attributed one injury each on the leg of the deceased. The facts of the present case are different from the aforesaid cited case. In the present case it is alleged that the applicant alongwith others, all armed with guns, had pointedly fired at the deceased Gaman when he fell down and caused injuries on his chest. Similar pica was raised in the case of Muhammad Sarwar v. The State 1982 S C M R 257 wherein it was found that the prosecution story as originally put forward was found to be false as a result of reinvestigation of the case, according to which three out of rive accused were found to be innocent and two new accused persons were implicated. Their Lordships observed that the petitioner who had applied for bail cannot get any advantage of it, because even if three of the co-accused had been found innocent, he cannot, simply on that account, be given benefit of doubt. In the recent authority on this very preposition reported in Muhammad Azim v. The State 1990 S C M R 1319, wherein under the similar circumstances of the case their Lordships have observed that the fact that some of the persons mentioned in the F.I.R. have been found innocent by the police by itself is not sufficient ground at the bail stage to cast doubt upon the participation of the petitioners in the occurrence. The name of the applicant appears in the F.I.R. and he has been assigned specific role of firing with a gun. It is next contended that the deceased was a dacoit of the locality and the complainant and P.W. Ali Murad taking advantage of the incident have falsely involved the applicant due to previous enmity. The learned counsel contended that several cases are pending against the deceased Gaman. It was also urged that the Mashirs of recovery of gun from the present applicant have sworn affidavits denying the factum of recovery. There arc other eye-witnesses in the case including the complainant and Ali Murad. In view of the observations of the Supreme Court in the case of Sanaullah and 3 others v. The State 1983 S C M R 15, the said ground is of no substance. This is not a proper stage to consider the above aspects of the case. The application being without any substance is hereby dismissed. N.H.Q./G-261/K???????????????????????????????????????????????????????????????????????????????? Bail refused.