2018 P Cr (PLP)

AMJAD ALI SAHITO, J.

Through this application, applicant Abdul Jabbar alias Jabbar son of Rajib Jokhio seeks his admission to post-arrest bail in Crime No.31 of 2015, registered with Police Station K.N. Shah (District Dadu), for offences punishable under sections 302, 148, 149, 337-H(2), P.P.C. His similar prayer was declined by learned trial Court vide its Order dated 22.10.2015. The allegation against applicant is that he and co-accused Mumtaz, Sarwar and Arif made pistol shots at nephew of complainant, namely, Akash which hit him, who succumbed to such injuries on the way to hospital. The motive of the alleged incident as set-out in the FIR is that the deceased was under the allegation of "Siyah-Kari". Learned counsel for the applicant mainly contended that the applicant is innocent and he has been implicated in this case with mala fide intention and ulterior motives; that the incident is alleged to have taken place at 6.30 p.m. in the month of February, when there is complete darkness and no source of light has been disclosed, as such mistaken identity cannot be ruled; that no specific role is assigned to applicant; that during course of investigation the applicant was let-off by the police while placing his name in column No.2 of challan; that the applicant is behind bars since 30.9.2015. Per learned counsel co-accused Nizamuddin has already been admitted to pre arrest bail. Lastly, learned counsel prayed for grant of bail in favour of applicant. On other hand, learned A.P.G. assisted by learned Advocate for complainant opposed grant of bail to applicant by submitting that he has been nominated in FIR with specific role of making fire at deceased, which resulted into his death and that the applicant has also remained fugitive from law for long time. Per learned counsel for complainant the case has already commenced and statements of complainant and his witnesses have been recorded, but their cross-examination is not conducted by the counsel for the accused. They prayed for rejection of the bail application. I have heard the learned counsel for the parties and gone through the available record. Perusal of FIR shows that the applicant has been nominated in the same with specific role that he along with, co-accused Mumtaz, Sarwar and Arif made fires at Akash (deceased), a Youngman aged 19 years, on the allegation of "Siyah-Kari", resulting into his death. The medical evidence supports the ocular account of the prosecution case. The motive of the alleged incident is also described within the body of FIR. After the incident, the applicant remained fugitive to law and trial. The offence, with which the applicant stands charged falls within prohibitory clause of section 497, Cr.P.C. Moreover, it is acknowledged by the learned counsel for applicant/accused that the trial has already commenced and examination-in-chief of complainant and eye-witnesses have been recorded. So far contentions of learned counsel for the applicant that there is enmity between the parties, it is suffice to say that no benefit of plea of previous enmity could be extended to accused at bail stage, as the enmity cuts both ways and it may be the cause for crime as well as implication. Another contention of the learned counsel was that the incident has taken place in dark hours and the source of seeing accused is not disclosed; in this context it is observed that the parties are already known to each other, as such question of mistaken of identity cannot be ruled out. Third, contention of learned counsel was that, there is general allegation of making fire against applicant and three other co-accused and no specific injury is assigned to him, in this context it is to say that it will make no difference that the injury caused by the applicant is fatal or otherwise, but the intention of the accused is very much there and even otherwise it would amount to deeper appreciation of evidence, which is not permissible at bail stage. So far contention of learned counsel for applicant that during course of investigation the applicant was let-off by the police; this ground is also not helpful for the applicant because the concerned Judicial Magistrate did not approve such opinion of police and joined the applicant in the case as accused, even otherwise the opinion of police is not binding upon Court. As for as, last contention of learned counsel that co-accused Nizamuddin has been admitted to pre-arrest bail is concerned, in this regard suffice it to say that the role of only instigation was assigned to co-accused. The above circumstances prima-facie connects the applicant with commission of the alleged offence, which falls within prohibitory clause of section 497, Cr.P.C. Accordingly, the instant bail application stands dismissed. Needles to mention here that the assertions made hereinabove are tentative in nature and would not influence the trial Court while deciding the case on merits. MQ/A-64/Sindh Bail refused.