2011 MLD 335 (PLP)

SALMAN HAMID, J.

The learned 1st Additional Sessions Judge, Shaheed Benazirabad having dismissed bail application in S.C. No.443 of 2009 "Re-Muhammad Essa v. The State" in terms of his order, dated 19-4-2010, the applicant has preferred the present bail application on the ground that the complainant who was the eye-witness to the alleged murder of Mst. Soomri and other eye-witness, who was the younger sister of the deceased having deposed in their evidence that the present applicant Muhammad Essa is innocent and that he has not committed the murder of Mst. Soomri the entire case of the prosecution goes away and that because of such evidence, at the very least, the applicant is entitled for the benefit of section 497, Cr.P.C. In support of his contentions, the learned counsel for applicant relied upon the case of "Muhammad Nawaz alias Najja v. The State" (1991 SCMR 111), "Ashfaq Ahmed Butt v. Muhammad Azam" (2007 SCMR 1254) and "Gul Bahar v. The State" (2009 MLD 865). Learned Assistant Prosecutor General Sindh appearing for the State has vehemently opposed the application on the ground that if this Court while appreciating the evidence of the prosecution witnesses that was led before the trial Court enlarge the applicant on bail, the same would adversely reflect upon the judgment that would be given by the trial Court and that if the applicant feels that the evidence has come in his favor, instead of filing present bail application, applicant can move application before the trial Court under section 265-K, Cr.P.C. for acquittal. Lastly it was argued by the learned A.P.G. for the State that the two eye-witnesses, one being complainant have been won over by the applicant he being son-in-law and brother-in-law of the two witnesses respectively and that the double barrel rifle was also recovered from him. It is well settled by now that at bail stage, the Court has to assess the case/or evidence tentatively and is not required to go deep into the matter which is the domain of the trial Court. Tentatively it has come on record that the two eye-witnesses have exonerated the applicant from the commission of offence he was charged with. In my opinion on the basis of the evidence which has already come on record a case of bail has been made out and the applicant can not allowed to be languished in prison merely on the apprehension of the learned counsel of the State that the evidence that has been given by the two eye-witnesses is a result of their winning over by the applicant and that the rifle was also recovered from his custody. Since the eye-witness have deposed in favour of the applicant the recovery of the rifle from his custody, at least at this stage becomes insignificant which recovery however can be linked to the murder if the ballistic report comes against the applicant. The case of the prosecution at this stage in not that the ballistic report is against the applicant and therefore there is likelihood of applicant's involvement in the murder of Soomri. The three cases cited by the learned counsel for the applicant supports his case inasmuch as the ratio of all the three case was that the allegations of the F.I.R. were not supported by the eye-witnesses and under such circumstances the case of the prosecution was not very bright and because of such position, the prosecution was not allowed to throw the entire burden on the side of the accused and under such circumstances the bail was granted. In view of the above findings, the applicant is enlarged on bail upon furnishing of solvent surety in the sum of Rs.100,000 (Rupees one (hundred thousands only) and PR Bond in the like amount, to the satisfaction of trial Court. It may be noted that this order shall not influence the trial of the case in any manner and the trial Court shall draw conclusion and pass judgment/order on the basis of the material available before it independently. H.B.T./M-154/K Bail granted.