2022 P Cr (PLP)

ZULFIQAR ALI SANGI, J.

Applicants Ali Gul son of Shah Murad Brohi and Amanullah son of Muhammad Hayat Brohi seek post-arrest bail in FIR No.35/2020, registered at Police Station Khanpur, (District Shikarpur), for offences punishable under sections 302, 506(2), 337-H(2), 337-A(i), 337-F(i), 114, 148 and 149, P.P.C. Previously they applied for the same relief before learned Ist. Additional Session Judge/MCTC, Shikarpur but their request was declined vide order dated: 28-04-2020.

2. The allegation against the applicants as per FIR lodged by complainant Inayat Hussain Brohi is that on 12.03.2020 the present applicants along with eleven co-accused intercepted the complainant party on the way. The present applicants were alleged to have fired pistol shots at deceased Haji Rawat, whereas co-accused Inayatullah, Akbar and Zafarullah were alleged to have made fires from kalashnikov at deceased Qutubuddin, while co-accused were alleged to have caused lathi blows to complainant on different parts of his body. It is further alleged that both the injured died on the spot due to firearm injuries. The motive for the alleged incident as set-out in the FIR is that the parties were annoyed with each other on the matter of quarrel between their children.

3. Mr. Azhar Hussain Abbasi, learned counsel for the applicants mainly contended that there are counter cases in between the parties; that FIR No.36/2020 was registered by applicant No.2 for offences under sections 302, 337-A(i), 337-F(i), 337-H(2), 114, 148 and 149, P.P.C against the complainant party. He next contended that ocular evidence furnished by the complainant is contradictory to medical evidence. Per learned counsel, according to FIR both the applicants fired upon deceased Haji Rawat and as per his postmortem report the deceased received only one firearm injury. He further contended that, investigating officer of the case let-off three co-accused, namely, Ghulam Akbar, Ghulam Sarwar and Ghulam Muhammad, however, they were joined in the case by concerned Magistrate; that complainant party has not come with clean hands, as they suppressed the facts of causing murder and causing injuries to applicants' party. He further contended that as per both FIRs the place, date and time of incident is same, as such it is yet to be determined after recording evidence before the trial Court as to which party was aggressor. Learned counsel further contended that some of the accused in counter FIR have been granted bail. He lastly, submitted that case has been challaned and applicants are no more required for further investigation. In support of his contentions, learned counsel has relied upon cases of Muhammad Hanif v. Manzoor and others (1982 SCMR 153), Jaffar and others v. The State (1980 SCMR 784), Ali Akbar Shah v. Banaras and others (1990 SCMR 1097), Shoaib Mehmood Butt v. Iftikhar-ul-Haq and 3 others (1996 SCMR 1845), Syed Darbar Ali Shah and others v. The State (2015 SCMR 879), Awal Khan and 7 others v. The State through AG-KPK and another (2017 SCMR 538), Abdul Hameed v. Zahid Hussain alias Papu Chaman Patiwala and others (2011 SCMR 606), Sayed Amanullah Shah v. The State and another (PLD 1996 Supreme Court 241) and case of Mukaram v. The State and another (2020 SCMR 956).

4. Conversely, Mr. Sundar Khan Chachar, learned Advocate for complainant vehemently opposed the grant of bail to the applicants on the grounds that, applicants are nominated in FIR with specific role of causing fire shots to the deceased Rawat and they have shared common intention with the co-accused and have caused murders of two innocent persons; that the pistols allegedly used by applicants in commission of offence have been recovered from their possession and that empties recovered from place of incident, as per FSL report matched with the pistols recovered from applicants. He further contended that examination of contradiction in ocular and medical evidence would be deeper appreciation of evidence, which is unwarranted at bail stage. Learned Advocate in support of his contentions relied upon case of Wahid Bux alias Wahidoo v. The State (2019 MLD 810 [Sindh (Sukkur Bench)], Ali Hassan and another v. The State (2011 YLR 846), Amir Hamza v. The State and others (2019 YLR Note 57), Khan Farosh and another v. The State and another (2013 PCr.LJ 1437), Ghulam Sarwar v. The State (2010 MLD 680) and Idrees v. The State (2012 MLD 660).

5. Mr. Muhammad Noonari learned Deputy Prosecutor General by adopting arguments advanced by learned Advocate for complainant, also opposed the grant of bail to the applicants/accused. He further added that, this is double-murder case and role of applicants is very much clear in the FIR that both of them fired upon deceased Rawat who died at the spot and that the weapons used in the commission of offence were recovered from applicants, for which FIRs Nos.39 and 40 of 2020 have been registered against them under the Arms Act. He also relied upon case of Mohsin Ali v. The State and others (2016 SCMR 1529) and Ismail Khan alias Ismail v. The State and another (2018 MLD 1393).

6. I have heard the learned counsel for the parties and gone through the material available on record with their able assistance.

7. Record reflects that both the applicants are nominated in the FIR with specific role that they while armed with pistols made successive fire shots on the person of deceased Haji Rawat who succumbed to the injuries at the spot. Other witnesses in their statements recorded under section 161, Cr.P.C., have also implicated the applicants with same role in the commission of offence. Ocular evidence is corroborated by postmortem report of the deceased Rawat which indicated that the death had occurred due to shock and haemhrrage as a result of injury over vital organs at body such as kidneys, liver, spleen, gut due to discharge of firearm, which was sufficient to cause death in ordinary course of life. Honourable Supreme Court in case of Ghani Khan v. The State and another (2020 SCMR 594) has held as under:-

2. After hearing the learned counsel for the petitioner, learned counsel appearing on behalf of the State and perusal of available record, it has been observed by us that the petitioner is named in the FIR with specific role of firing at the complainant Hazrat Ullah, which as per the statement of the complainant, hit him on his right thigh and right side of his chest. The said allegation is prima facie supported by the medical evidence. The offence alleged against him falls within the prohibitory clause of section 497(2), Code of Criminal Procedure. In these circumstances he is not entitled to the concession of bail.

8. Contentions of learned counsel that as per FIR both applicants fired upon deceased which hit him whereas as per postmortem report deceased received only one fire-shot. Post mortem report available with bail application at page 47 was examined wherein the doctor mentioned two injuries upon the person of deceased Rawat and at this stage without recording the evidence of the doctor it cannot be opined that both the injuries are result of one fire shot and the same is deeper appreciation of evidence which is not permissible at bail stage. Reliance is palace on the cases of Mumtaz v. The State (2012 SCMR 556), Mst. Irshad Begum v. Muhammad Afzal and others (1985 SCMR 1691). Honourable Supreme Court in case of Sohail Waqar alias Sohaila v. The State and others (2017 SCMR 325) has held as under;-

3. After hearing the learned counsel for the petitioner and learned Law Officer at some length and perusing the available record with their assistance, we have noted that petitioner has been specifically nominated in the FIR and specific role of firing at Mubashar Bhatti (deceased) has been attributed to him. The police have found him guilty during the investigation. He remained fugitive from law for a considerable period of time. So far as the conflict between the ocular account and the medical evidence, pointed out by the learned counsel for the petitioner is concerned, suffice it to observe, deeper appreciation of evidence is not desirable at the bail stage. It is for the learned trial Court to determine, after recording evidence pro and contra, the guilt or otherwise of the petitioner. The offence alleged falls within the prohibitory clause of section 497, Code of Criminal Procedure, which disentitles the petitioner for grant of bail.

9. Contentions of learned counsel that counter FIR was registered against the complainant party by the applicant party therefore it is to be determined after recording the evidence that which party was aggressor and this ground alone is sufficient to grant bail to the applicants, has no legal force in view of the fact that the applicants are nominated in FIR with specific role of causing firearm injuries to the deceased Rawat and recovery of crime weapons was effected from them which too matched with the empties recovered from the place of incident. In case of Nasrullah Khan v. Mst. Bas Khandana and another (1997 MLD 2071), it has been held by the Hon'ble Court that; "Ss. 497/498

Bail

Counter version

Counter version by itself cannot be pressed into service as of right for grant of bail unless there is a scope of further inquiry in the matter". In case of Imranuddin and another v. The State (1983 SCMR 278), it has been held by the Hon'ble Court that; "Mere fact that; in cross-case persons charged for having caused injuries have been released on bail

Held no ground for releasing petitioners on bail particularly when allegations against them are more serious." In case of Arbelo and 2 others v. The State (2013 PCr.LJ 1155), it was held by this court that;

S. 497

Bail, right of

Scope

Case of counter-versions

Plea was that bail should be allowed in every case which had a counter-version

Validity

Rule that bail must be granted in every case of counter-version was not a hard and fast rule, and each case had to be examined on its own facts and circumstances.

10. Present incident took place in daylight, after the FIR applicants were arrested and pistols used in the commission of offence were recovered from their possession, the empties of pistol recovered from the place of incident were matched with the pistols recovered from the applicants, such FSL report is with the prosecution. Honourable Supreme Court in case of Rehman Ullah alias Insaf v. The State and others (2020 SCMR 357) has held as under:- "After hearing the learned counsel for the parties and going through the record we have observed that the occurrence in this case had taken place in daylight and an FIR in respect of the same had been lodged with reasonable promptitude wherein the present petitioner had specifically been named as the principal accused and effective firing at Majeed Khan deceased as well as ineffective firing at Sajjad Gul complainant had been attributed to him therein. It is not disputed that the eye-witnesses mentioned in the FIR have so far stood by their statements made before the police fully incriminating the petitioner and also that prima facie the medical evidence lends support to the ocular account in respect of the role attributed to the petitioner. Apparently the petitioner was connected with the motive set up in the FIR and during the investigation a pistol had been recovered from his custody which firearm had matched with two crime-empties secured from the place of occurrence and also with a bullet recovered from the deadbody of Majeed Khan deceased. According to the record the petitioner had remained a fugitive for three long years before he was arrested in connection with this case. The petitioner's trial has already commenced. In view of all these factors available on the record prima facie reasonable grounds exist to believe in the petitioner's involvement in the alleged offences. This petition is, therefore, dismissed and leave to appeal is refused.

11. It is settled principle of law that deeper appreciation of evidence is not permissible while deciding the bail plea of the accused and material collected during investigation is to be assessed tentatively. From the tentative assessment of material available on the record in shape of FIR, statements of the witnesses recorded under section 161, Cr.P.C, medical evidence including the recovery of the pistols from the applicant with positive FSL, Prima facie, there appears sufficient evidence/ material against the applicants which connect them with the commission of offence in which two innocent persons lost their lives, therefore, the applicants are not entitled to the benefit of bail. Resultantly the bail application of the applicants is dismissed.

12. It is observed that the case is pending before MCTC court Shikarpur for trial, therefore, the trial court is directed to conclude the trial within three months from the date of this order under intimation to this court through Additional Registrar. In case the applicants or their counsel are found reluctant to proceed with the case, the trial court may appoint advocate for them on state expenses and do not grant unnecessary adjournments.

13. The observations made hereinabove are tentative in nature and shall not prejudice the right of either party at the trial.

14. The bail application is disposed of in the above terms. SA/A-190/Sindh Bail decline