2010 PLP 1762 (MLD)

SYED SHAFQAT ALI SHAH MASOOMI, J.

Applicant is seeking bail in Crime Nos. 110/2007/2009 of Police Station, Gambat, Sukkur registered for an offence under sections 302, 337-H(ii), 147, 148, 149, P.P.C. The facts leading to the case are that on 16-8-2007 at 2300 hours complainant Arbab Ali lodged F.I.R. stating that he along with his brothers Muhammad Alam, Muhammad Maroof, nephew Ghulam Hussain and cousin Hubdar were irrigating the land and at about 9-30 p.m. the present applicant Ali, Gul including 13 other persons armed with deadly weapons came there made direct fires along with co-accused with Kalashnikovs at Muhammad Alam and Muhammad Maroof, which hit them and they died on the spot; hence the F.I.R. was lodged as stated above. Heard the learned counsel for the applicant and learned APG and also perused the material available on record. The learned APG has vehemently opposed to the grant of bail. From the perusal of record it is clear that the P.Ws. who were available at the time of occurrence have fully implicated the applicant in the commission of this crime. The identification of the applicant/accused is on light but it is not mentioned that it was on torch-light or on electricity light. The present applicant along with other accused appeared there where the complainant and P.Ws. was irrigating the water to the land, with deadly weapons, the applicant Ali Gul challanged the complainant party and he along with other accused Momen, Ameer Ali and Gulam made direct fires with Kalashinkovs on the brothers of complainant Muhammad Alam and other accused Abdul Majeed, Bakht Ali and Mumtaz directly fired with Kalashinkovs at Muhammad Maroof, which hit them and they died on the spot in presence of the complainant and his P.Ws. It is also alleged that present applicant after the incident escaped away, he chosen to remain absconder in the present case and did not appear before the Investigating Officer during investigation and even then he remained absconder for a period of one year and eight months. It has also been pointed out by the learned APG that the present applicant is also involved in another Crime No.32 of 2009 of Police Station Baberloi for offence under sections 395, 353, 324, P.P.C. and in that case a Kalashinkov has also been recovered from the applicant for which Crime No. 33 of 2009 Police Station Baberloi has been registered. The learned counsel for the applicant has cited case-law 1982 PCr.LJ 30 in which on the ground of inconsistency between deposition of witnesses and doctor's report entailing difference about time of occurrence, the bail was granted but the facts of the present case are entirely distinguishable from the cited case. Reliance is also placed upon 1917 SCMR 251 and 2006 SCMR 71, these citations are also not applicable to the facts and circumstances of the present case. So far as delay of 15 days in recording the statement of P. Ws. is concerned, the learned APG in this respect has relied upon PLD 1997 SC 545 in which 161 Cr.P.C. statements were recorded after a period of 16 days, in which it has also been held that the material available on record to implicate the accused persons with the offence was retracted judicial confession of a co-accused and the statements of the witnesses were recorded under section 161 Cr.P.C. after expiry of about 16 days and the recording of statements of the prosecution witnesses will not be determined at the bail stage and evaluation of statement of accused by comparing that statements with statements of other witnesses would also not be justified at that juncture and bail refused. Name of the applicant appears in F.I.R., specific role has been assigned that he along with co-accused directly fired on the deceased Muhammad Alam with Kalashinkovs who died on the spot. The accused are relatives of the complainant party as stated by the learned counsel for the applicant, therefore, identity of the accused by name in the F.I.R., is not doubtful. The recovery of blood-stained earth and 20 empties of Kalashinkovs has been recovered from the place of occurrence which corroborate the version of eye-witnesses. Post-mortem report reveals that deceased died due to fire-arm injury, which also supported the version of the ocular evidence. As applicant along with other co-accused is involved in a double murder case, hence he is not entitled for any concession of bail. For the foregoing reason, applicant has not been able to make out a case of further enquiry; hence I see no merits in this application and dismissed the same. However, the observations made herein above are tentative in nature for the purpose of only disposal of bail application and may not influence the mind of trial Court, which is free to appraise the evidence strictly according to merits of the case. Criminal Bail Application No.597 of 2009 stands disposed of. H.B.T./A-133/K Bail refused.