1998 P Cr (PLP)

‑‑‑‑S. 497‑‑‑Penal Code (XLV of 1860), S.302/324 [as substituted by Criminal Law (Amendment) Act (V of 1997)]‑‑‑Bail, grant of‑‑‑Name of accused appeared in F.I.R. with a specific overt act of firing fatal shot from his gun having been attributed to him which resulted into the death of complainant's brother‑‑‑Complainant had himself witnessed the incident which was duly supported by prosecution witnesses in their statements under 5.161, Cr.P.C.‑‑‑Voluntary production of the weapon on the pointation of the accused, could not be overlooked‑‑‑Case against accused had not yet proceeded‑‑‑Accused, in circumstances, could not he extended concession of bail. Allah Bachayo Soomro for Applicant. Mukhtar Ahmed Khanzada for the State. Bail is sought by the present applicant in respect of Crime No.38 of 1997 registered at Police Station Hatri under sections 302, 34, Qisas and Diyat Ordinance. Briefly the facts of the case are that complainant Rano had lodged the aforementioned F.I.R. to the effect that he was residing with his brother Kamil and that the applicant Aijaz was on visiting terms with them and was residing at village Allah Rakhio Solangi. According to the F.I.R., lodged by the complainant which is to the effect that about one year ago applicant had obtained a loan for a sum of Rs.10,000 from him on the promise to return the same back to the complainant. On the fateful day, the complainant alongwith his brother went to the village of the applicant who had met them and stated that the money was lying with Shahwani Sahib, who vas available in his garden. As such the complainant and his brother were required by the applicant to go to the garden of Shahwani Sahib and await his arrived. While the complainant and his brother were waiting at the garden of Shahwani Sahib at 9‑00 p.m., the applicant is stated to have appeared with DBBL gun and had asked Kamil that no money was outstanding against him and accordingly, the applicant is stated to have fired from his gun which had hit Kamil and on account of said gun shot injury Kamil fell down on the ground. Allegations are also to the effect that there has been ineffective firing in so far as the present complainant is concerned. After having fired the applicant is stated to have run away from the scene of occurrence. Resultantly, the brother of the complainant died whereafter the complainant went and informed Tayyab Noonari and Gulzar Noonari and after having left them over the dead body the complainant had proceeded to the police station for lodging the F.I.R. That consequent to the registration of the aforementioned F.I.R., investigation was concluded and the applicant has been sent up to face trial vide Sessions Case No.424 of 1997 before the Court of learned IInd Additional Sessions Judge, Hyderabad. The contentions of the learned counsel appearing for the applicant before me are that there is unexplained delay in the lodging of the F. I. R. and that no motive has been ascribed to the applicant and further that it is an unwitnessed crime and the prosecution story is not believable in terms of ineffective firing upon the complainant. The leased counsel further contended before me that the recovery has taken place after four days without any independent witnesses and hence there is non‑compliance of the provisions of section 103, Cr.P.C. as such the case of the applicant would fall within the scope of further inquiry as contemplated by subsection (ii) to section 497, Cr.P.C, and the applicant deserves the concession of bail. His further contention raised was that two witnesses, namely, Imam Din and Baloch Khan were not mentioned it: the F.I.R. but have been subsequently introduced and hold they been present on the scene of occurrence then their names ought to have reflected in the F.I.R. Mr. Mukhtar Ahmed Khanzada, the learned State Counsel, has vehemently opposed the grant of bail inasmuch as he has met the ground raised oil behalf of the applicant by submitting that surely there is some delay in the lodging of the F.I.R. but the same stands duly explained as the distance from the scene of occurrence to the police station is about ten kilometres. He has submitted that two shots were fired by the applicant and correspondingly two empties were recovered, as per the Mashirnama, from the scene of occurrence The learned State Counsel has further resisted the grant of bail on the basis of the recovery of weapon having been made at the pointation of the applicant himself. He further contended that motive is also established against the applicant and moreso the post‑mortem report completely falls in line with the ocular evidence. I have considered the contentions raised before me in respect of the present application. The fact remains that the name of the applicant appears it the F.I.R. with a specific overt act having been attributed to him of firing the fatal shot from his gun resulting into the death of complainant's brother and further the complainant has himself witnessed the incident which is duly supported by prosecution witnesses namely, Imam Din and Baloch Khan in their statements under section

161. Cr.P.C. Voluntary production of the weapon of the pointation of the present applicant cannot, under the present circumstances he overlooked and moreso case has yet not proceeded and, therefore, for the present, the applicant cannot be extended the concession of bail and accordingly the present application stands dismissed. However, the learned Trial Court is directed to examine the complainant and the two witnesses, namely, Baloch Khan and Imam Din within a period of three months from the date of receipt of this order, whereafter it will be open to the applicant to repeat his application for I bail, if so advised. H.B.T./A‑190/K Application dismissed.