2001 PLP 1379 (YLR)

The prosecution examined P.W.1 Muhammad Rafique, the complainant at Exh.5, who produced his F.I.R. as Exh.-5/A, Memo of Inspection of the place of incident and seizure of Car bearing 'Registration No.V-8163 as Exh.5/B and Memo. of arrest and personal search of the accused as Exh.5/C. The prosecution has also examined P.W.2 Malik Sher Ali, an eye-witness of the incident, at Exh.8, who produced photocopy of his N.I.C., Service Identity Card, Registration documents of Vehicle No.J.M. 1639, as Exhs.8/A to 8/D. The prosecution also examined P.W.3 Dr. Abdul Khalique, at Exh.9, who produced photostat of the Medical Legal Certificate of the injured as Exh.9/ 1 and the Letter of Request of the Police for endorsing cause of death, which bears such endorsement as Exh.9/2. P.W. 4 Muhammad Sharif, who is mashir of injuries of deceased and Inquest Report has been also examined by the trial Court as Exh.11. After examination of four P.Ws., namely, Muhammad Rafiq, complainant, P.W.2 Malik Sher Ali P.W.3 Dr. Abdul Khaliq, P.W.4 Muhammad Sharif, the bail application was moved by the learned counsel for applicant before the trial Court, who after hearing the learned counsel for the parties dismissed the bail application by order, dated 14-4-2000, hence this bail application. Mr. Muhammad Ashraf Kazi, learned counsel for the applicant has contended that the place of wardat is a Commercial Area and there is no eye-witness on the factum of the incident. According to Mr. Muhammad Ashraf Kazi, learned counsel for applicant, after the examination of the afore named four witnesses, namely, Muhammad Rafiq, complainant, P.W.2 Malik Sher Ali P.W.3 Dr. Abdul Khaliq, P.W.4 Muhammad Sharif, there are conflicting statements with regard to the incident and the case calls for further inquiry and has placed reliance on 7982 SCMR 153, PLD 1978 SC 256, 1999 PCr.LJ 26; 2000 PCr.LJ, 2053, 1997 PCr.LJ 159, 1999 PCr. LJ 1044 and PLD 1962 Karachi

800. Mr. Syed Naqi Mirza, learned counsel for applicant has adopted the same arguments as rendered by Mr. Muhammad Ashraf Kazi, learned counsel for applicant. On the other hand, Mr. Gul Zaman Khan, learned counsel for complainant raised preliminary objection that this bail application cannot be heard by me in view of the order passed by my learned brother Muhammad Ashraf Leghari, J. in Criminal Miscellaneous No. 315 of 1999, while cancelling the bail of the afore named applicant and according to Mr. Gul Zaman Khan, learned counsel for complainant this bail application is to be heard by my learned brother Muhammad Ashraf Leghari, J. He has placed reliance on Zubair's case reported in PLD 1986 SC 173 and 1977 SCMR 1336, 1999 SCMR 790 and PLD 1995 Karachi

566. On such objection, Mr. Ashraf Kazi, learned counsel for applicant has contended that this application can be heard by me, in view of the fact that four witnesses, namely, Muhammad Rafiq, complainant, P.W.2 Malik Sher Ali P.W.3 Dr. Abdul Khaliq, P.W.4 Muhammad Sharif, have been examined by the trial Court and thereafter he moved bail application before the trial Court, which was dismissed and thereafter he has filed this bail application before this Court and it can be heard by any Judge of this Court, after such developments. Mr. Gul Zaman Khan, learned counsel for Complainant, on merits, argued that the name of the applicant appears in F.I.R.; fatal injuries are attributed to the applicant and the version of the complainant being supported by P.W. Malik Sher Ali and according to Mr. Gul Zaman Khan, learned counsel for complainant, only Investigating Officer is yet to be examined and at the most directions be given to the trial Court to examine Investigating Officer and complete the case within the stipulated time. He has placed reliance on 1997 SCMR 788, 1996 SCMR 555; 2001 SCMR 199; 2000 SCMR 1405-1408; PLD 1993 Karachi 55-59, PLD 1994 SC 65; PLD 1990 SC 84-88 and 1991 SCMR 1849. Mr. Gul Zaman Khan; learned counsel for the complainant has argued that Doctor Abdul Khaliq has been examined by the trial Court, who has given the cause of death and in the absence of post-mortem report, the present applicant is not entitled to the concession of bail. According to Mr. Gul Zaman Khan, learned counsel for the complainant, in such cases, the quantity of the witnesses is not to be seen but the quality of the witnesses is to be seen and there is evidence of the complainant against the present applicant, who has implicated the applicant in the F.I.R. and even before the trial Court as P.Ws. that learned counsel for complainant has contended that it is not a fit case for grant of bail. Mr. Sharafat Ali Khan, learned State counsel has supported the contention of Mr. Muhammad Ashraf Kazi, learned counsel for the applicant and has contended that it is a case of further inquiry. I have heard Mr. Muhammad Ashraf Kazi and Mr. Syed Naqi Mirza learned counsel for applicant, Mr. Sharafat Ali Khan, learned State counsel and Mr. Gul Zaman Khan, learned counsel for the complainant. I have gone through the material available on record; I lave very carefully examined the depositions of the witnesses examined by the prosecution before the trial Court. I have also gone through the authorities cited by the learned counsel for the parties in support of their respective contentions. No doubt, the bail of the applicant has been cancelled by my learned brother Muhammad Ashraf Leghari, J. and the present bail application is being moved by the learned counsel for applicant after examination of four witnesses, namely, Muhammad Rafiq, complainant, P.W.2 Malik Sher Ali, P.W.3 Dr. Abdul Khaliq, P.W.4 Muhammad Sharif, and in view of such developments, I am of the considered view that this bail application can be heard by any Judge of this Court and Zubair's case reported in PLD 1986 SC 173 and 1997 SCMR 1336 are not applicable in the instant case. On merits, Mr. Muhammad Ashraf Kazi, learned counsel for applicant has placed reliance on the case of Muhammad Hanif v. Manzoor and others (1983 SCMR 153) wherein the Hon'ble Supreme Court has held that, Bail

Court at the stage of deciding question of bail, held, need not to enter upon a detail appreciation and examination of evidence

Question, however, cannot be decided in vacuum and Court has to look at the material available. The facts of the present case are different from the facts mentioned in 1982 SCMR 153, as the accused/respondents were empty-handed at the time of incident and the learned Judge was perfectly justified in drawing tentative conclusion as to the part alleged to have been played by them in transaction, which is resulted in the death of Ali Muhammad and observation that the question of the application of section 34 of Pakistan Penal Code, the case of respondents needs further inquiry is not open to exceptions. In the instant case the present applicant has played active role during the commission of the offence and he has been specifically named by the complainant in the F.I.R. with weapon and has been implicated by the complainant in his deposition before the trial Court and therefore, the law cited by Mr. Ashraf Kazi, learned counsel for applicant reported in 1982 SCMR 153 is of no help to him. The facts of the case of Rao Muhammad Jalees alias Jallo v. The State (1990 PCr.LJ 26) are distinguishable from the facts of the present case. Mr. Muhammad Ashraf Kazi, learned counsel for applicant has relied upon 2000 PCr.LJ 2053, wherein this Court has granted bail to the accused and in the aforementioned decision given by this Court, the witnesses have not been examined by the trial Court, . thus the facts of the aforementioned case are distinguishable from the facts of the present case. Reliance has been placed by Mr. Muhammad Ashraf Kazi, learned counsel for applicant in the case of Zahid Hussain v. The State (1999 PCr.LJ 1044); it is a criminal appeal and the bail has not been granted under sections 497 and 498, Cr.P.C. and thus the law cited by learned counsel for applicant is of no help to him. Mr. Muhammad Ashraf Kazi, learned counsel for applicant has further placed reliance on the case of Abdul Hai and 2 others v. The State 1996 SCMR 555, which authority on the contrary goes against the present applicant and is of no help to the learned counsel for applicant. Admittedly, the present applicant has been named by the complainant in the F.I.R. and has also been implicated by the complainant in his evidence before the trial Court and the other witness, namely, Malik Sher Ali has also implicated the 'present applicant. There is evidence of Doctor Abdul Khaliq, who has given cause of death before the trial Court. While dealing with the bail application, all that is to be seen, whether there are sufficient reasons to connect the present applicant with the commission of the alleged offence, Court has not to go into details of evidence nor the evidence could be sifted at bail stage. The present applicant has been named in the F. I. R. and role of fire at the deceased, who had suffered fire-arm injuries, is attributed to the present applicant; empties have been recovered from the place of wardat and there is sufficient material available on record to connect the present applicant with the commission of the offence and the present applicant has also been implicated by the complainant in his evidence given by him before the trial Court with specific role and at this stage the Court has not to go in details of ,evidence and the Superior Courts have always decided to avoid deeper appreciation at the stage of bail. Reference can be made to the cases of Saeed v. The State (PLD 1992 Kar. 137) and Sanatta and another v. The State (1982 SCMR 208). Section 497 subsection (4), Cr.P.C. is reproduced as follows: "If, at any time after the conclusion of the trial Court, a person accused of non-bailable offence and before judgment is delivered, the Court is of the opinion that there are reasonable grounds for believing that accused is not guilty of such offences, it shall release the accused; if he is in custody, on the execution by him of a bond without sureties for his appearance to hear judgment delivered. " In the present case four witnesses namely, Muhammad Rafiq, complainant P.W.2 Malik Sher Ali, P.W.3 Dr. Abdul Khaliq, P.W.4 Muhammad Sharif have been examined by the prosecution and complainant Muhammad Rafiq and Malik Sher have implicated the present applicant and at the moment there are no reasonable grounds for believing that the accused is not guilty of such offence and the Court at this stage cannot go into details of evidence, nor evidence could be sifted at bail stage and prima facie the applicant has not been able to make out a case for grant of bail at this stage. In view of the above discussion, I see no merits in the bail application and accordingly the present bail application is dismissed. However, the trial Court is directed to make all possible endeavours to conclude the trial within two months from the date of receipt of this Order. N.H.Q./G-75/K ????????????????????????????????????????????????????????????????????????????????????????????? Bail declined.