2018 P Cr (PLP)

AFTAB AHMED GORAR, J.

Through instant criminal bail application, applicant/accused Fazil son of Allah Jurio seeks post-arrest bail in crime No. 29 of 2015, Police Station Daroo District Sujawat for the offence falling under sections 302, 324, 452 and 34, P.P.C. Earlier the bail plea of the applicant/accused was declined by the learned Court of Additional Sessions Judge, Sajawal vide order dated 08-06-2016 impugned hereinabove.

2. Precisely the facts leading to the prosecution story as is envisaged in the FIR are that on the eventful day present applicant/accused together with co-accused Abdul Aziz Samejo entered into the house of complainant, whereby accused Abdul Aziz made straight fire upon Mst. Azizan aged about 25 years bullet hit at her eye and went through and through whereby Mst. Azizan succumbed to her injuries and died; present applicant/accused also made firing which hit the tree of Neem, hence this FIR.

3. Learned counsel for the applicant/accused contended that applicant/accused is innocent and has been falsely implicated in the present case due to ulterior motives and with mala fide intention; per learned counsel no any independent eye-witness of the vicinity has been cited as a witness because the place of incident is a house and several neighbors are there but police failed to associate any independent witness thereby there is clear violation of mandatory provisions of section 103, Cr.P.C.; per learned counsel there is no allegation against the applicant to have caused any injury to deceased or injured some other house inmates; per learned counsel Investigation Officer of the case had minutely examined the said Neem tree but he could not find out any hole on it; per learned counsel no any incriminating article has been recovered from the applicant; the alleged recovery is foisted upon applicant/accused; per learned counsel challan has been submitted and the applicant/accused is no more required for further investigation purposes; per learned counsel the applicant/accused is behind the bars since his arrest i.e. 05.06.2015; per learned counsel the applicant/accused is entitled for the grant of bail as on the sole ground of hardship as well.

4. Learned counsel for the complainant vehemently opposed the grant of bail and contended that applicant was very much present at the place of incident; per learned counsel the applicant/accused made firing, upon complainant but complainant luckily saved and bullet hit at the tree of Neem; per learned counsel applicant/accused was arrested with the alleged pistol which was being used in the commission of offence; per learned counsel the present applicant/accused is associated with the alleged incident because applicant/accused was facilitator to co-accused; per learned counsel the applicant/accused had committed heinous type of offence, therefore the applicant/accused is not entitled for the concession of post arrest bail; per learned counsel the bail of the applicant/accused may be declined in the interest of justice.

5. Learned APG supported the arguments advanced by the learned counsel for the complainant.

6. Heard and perused.

7. It is an admitted fact that Investigation Officer of the case failed to associate any independent source/person to act as eye-witness of the incident because the place of incident seems to have been house which is situated in a thickly populated area even otherwise at the time of firing several peoples were gathered ever there, this aspect of the case negates the mandatory provisions of section 103, Cr.P.C.; further the role of firing and association as is attributed to the present applicant/accused is concerned, the applicant/accused as alleged fired with the pistol but same hit to the Neem tree despite applicant/accused did not repeat the same act as complainant as alleged was present over there and was at the mercy of circumstances and the applicant/accused as well; it is also fact that applicant/accused was arrested on 05/06/2015 and since then applicant/accused is behind the bars; about two years have been elapsed; since challan of the case has been submitted and the present applicant/accused is no more required for further investigation; the case of the present applicant/accused is covered within the ambit of subsection (2) of section 497, Cr.P.C.

8. As discussed supra, the applicant/accused Fazil son of Jurio is enlarged on post-arrest bail subject to his furnishing solvent surety in the sum of Rs.300,000/- (Rupees Three Hundred thousand) only and P.R. Bond in the like amount to the satisfaction of the learned trial Court. Note:- The observations made hereinabove are tentative assessment and would not prejudice to the case of prosecution at the trial. WA/F-11/Sindh Bail granted.