2012 PLP 1927 (MLD)

FAROOQ ALI CHANNA, J.

This bail application has been moved for grant of bail to accused Gohram and Panah, both arrested in F.I.R. No.373 of 2011 offences under sections 302, 324, 148,149,114, P.P.C. of Police Station Ubaro District Gotki.

2. Brief facts of the prosecution case are that the complainant Lakhmeer lodged the F.I.R. that on the day of incident he along with injured Mst. Shahzadi and Mst. Zohran and other P.Ws were cutting grass on their land, where accused Gohram and Panah along with other co-accused armed with rifles, kalashnikovs and repeaters came there. Accused Jan Muhammad and Raees Badah instigated their companions to kill the complainant party on which accused Gohram and Panah (present applicants) fired from their rifles with the intention to commit the Qatl-e-Amd of the complainant party. The fire shots hit Mst. Shahzadi, who fell down. Accused Jindal fired from refile and Fakiro fired from Kalashankov at Mst. Zohra with intent to commit her Qatl-e-Amd. The fire shots were received by Mst. Zohra on her body who also fell down. Both the injured were taken to hospital, where, after some days during treatment Mst. Zohran succumbed to injuries, hence section 302, P.P.C. was applied in the challan sheet.

3. I have heard Mr. Zulfiqar Ali Jalbani, Advocate for the applicants. He has contended that the accused have been involved in this case falsely due to old enmity between the parties which enmity is admitted by the complainant in his F.I.R., his other contention was that the injuries sustained by deceased Mst. Zohra were specifically attributed to other accused Jindal and Fakiro, hence the charge under section 302, P.P.C. would be against them and not against the present applicants/accused. He has further contended that the statements of P.Ws. are contradictory to the version set up in the F.I.R. as in the F.I.R. the complainant has assigned specific role against each accused whereas all the four P.Ws. including injured have not specifically alleged against any accused and have alleged commonly that all accused fired from kalashnikov and rifles. He has also contended that there is conflict in the medical evidence and the ocular testimony. He has contended that as per the contents of the F.I.R., the accused fired from their rifles and kalashnikov but no injured has sustained rifle fire shot injury and as per medical certificate the injuries on the person of the deceased and injured were caused with shot gun which conflicting version was sufficient to make the case one of the further inquiry. He has further contended that although the accused remained in police custody under remand for 12 days but no crime weapon has been recovered, which shows that in fact no weapon was used by applicant/accused. He has further contended that accused are in jail since 8 months but there is zero progress in case proceedings and there is no hope of conclusion of trial in near future and no accused can be detained behind the bar for an indefinite period. He has further contended that four co-accused Akhtiar, Jumo, Jan Muhammad and Raees Badah have been granted bail before arrest by the trial court. According to learned counsel in these circumstances it is a fit case for further inquiry and the applicants/accused deserve concession of bail. He has relied upon the cases reported in 1999 MLD 3302 (Muhammad Mumtaz v. The State), 2011 YLR 1147 (Ghulam Murtaza v. The State), 2009 PCr.LJ 646 (Bachal v. The State), 2004 SCMR 1560 (Muhammad Amin alias Irfan and another v. The State), 2012 MLD 319 (Zia Ullah v. The State), 1999 MLD 1853 (Muhammad Mukhtar and others v. The State), 2012 YLR 509 (Talib and another v. The State), 2011 PCr.LJ 485 (Allah Ditto v. The State), 2012 YLR 799 (Abo ul Hassan and another v. The State).

4. Mr. Shahid Ahmed Shaikh, A.P.-G. has opposed the grant of bail and has contended that although the allegation of causing injuries to the deceased has been attributed to other accused and not to the present accused but while deciding the bail application the entire case is to be seen as a whole and not in pieces against each accused as per role assigned to them. He has further contended that beside the charge of murder the applicants/accused are also facing charge of causing fire shot injuries to Mst. Shahzadi with intention to commit her Qatl-e-Amd, which offence also provides punishment to the extent of 10 years with Diyat and also comes within the ambit of prohibitory clause of section 497(2), Cr.P.C. The injuries to the injured P.W. Mst. Shahzadi are specifically attributed to both the present applicants/accused. He has further contended that the opinion of the medical officer who had examined the injured, regarding the weapon used as shotgun in this crime seems to be obliging opinion and nothing else. It was further contended that prima facie the involvement of accused is proved from the evidence collected during the investigation as such no case of bail is made out. He has relied upon the case reported as 2001 PCr.LJ 134 (Zahid Shah v. The State).

5. I have considered the arguments and perused the record. Although the allegation of causing injuries to the deceased are attributed to accused Jindal and Fakiro and not against the present applicants/ accused but yet the present applicants/accused being member of unlawful assembly are also facing the charge of committing the murder in prosecution of their common object punishable under section l49, P.P.C. which provides equal punishment as that of the principal accused. Furthermore, the applicants/accused are specifically alleged for causing fire shots injuries to the P.W. Mst. Shahzadi with intent to commit her Qatl-e-Amd which allegation also finds support from the medical evidence. So for the plea of defence counsel regarding the conflict in medical report and ocular evidence is concerned, the opinion of the Medical Officer regarding the nature of weapon as shotgun used in this crime seems to be immaterial as admittedly the doctor had not seen the occurrence therefore will not be in position to say about the weapon used in the crime unless the injuries are opined as pallet or bullet injuries. In the instant case the mashirnama of Vardat shows recovery of some empty bullets from the place of incident which supports the F.I.R. that the rifles were used in this incident. The injuries on the person of the deceased and injured P.W. Shahzadi shows that the same were received on the front part of the bodies, passed through and through and exit from the back side. Such type of injuries must be the result of bullet and not pallet. I also do not find force in the submission of the defence counsel that there is contradiction in the statement of the complainant specifying the role to each accused and the statements of prosecution witnesses, who have not alleged specifically against any accused and alleged generally against all the accused. The said contradiction makes the witnesses trustworthy and not the tuted witnesses as they have stated before the I.O. whatever they actually had seen. Non-recovery of crime weapon from the accused will be of no help to applicant/accused in the presence of ocular testimony which was in the line of medical evidence. The citation relied upon by the learned advocate for the applicants/accused with profound respect are not applicable to the instant case as the same bear the different facts and the law points from the facts of this case.

6. For the reasons discussed above, there appears reasonable grounds for believing that the applicants/accused are involved in the offence, therefore, no case for bail is made out Bail application dismissed. The impact of observations mentioned above shall be considered for the purpose of this bail application and shall not influence the trial court or prejudice the case of either party. MWA/G-25/K Bail refused.