' FAQIR MUHAMMAD KHOKHAR, J.--- The petitioner seeks leave to appeal from order, dated 20-8- 2004, passed by a learned Single Judge of the High Court of Sindh, Hyderabad Circuit, whereby Criminal B.A. No,459 of 2004 of the petitioner for grant of bail in a murder case was dismissed.
2. A case F.I.R. No,18 of 2004 was registered against the petitioner on 10-5-2004 at Police Station Baldia, Hyderabad, under sections 302/324, P.P.C. For the murder of one Fateh Muhammad Jakhrani. The complainant Qazi Talmeez alias Taani alleged therein that on 10-5-2004 at about '12- 30 a.m. He along with his friends P.Ws. Qazi Muhammad Ayub, late Fateh Muhammad Jakhrani deceased and Sikander, were sitting in Katchehery at the Bungalow of his friend Zahid Khan Jakhrani situated at village Muhammad Bux Shoro. He received a mobile phone call from Usman Aalmani Baloch who wanted to meet him. Shortly thereafter, Usman Aalmani Baloch accompanied by the petitioner and Ali Jamot came there in a Land Cruiser. While all of them were sitting inside the Bungalow, the petitioner and Qazi Muhammad Ayub misbehaved him as well as his friends.
Sikandar went away. On account of misbehaviour of the petitioner, the Katchehery was closed.
While the petitioner was sitting in the Land Cruiser, he took out his two pistols lying near the hand brake and opened straight fire at the complainant. The bullets hit the complainant at his left thigh who fell down. Thereafter, the petitioner fired at P.W. Qazi Muhammad Ayub whereupon Fateh Muhammad Jakharani deceased also came out. The petitioner also fired at him which hit him on his right shoulder and he fell down. The petitioner accompanied by Usman Aalmani and Ali Jamot went away in the land cruiser. The complainant and P.W. Qazi Muhammad Ayub took the injured Fateh Muhammad Jakhrani to the Civil Hospital where he was declared as dead. After his arrest, the petitioner also lodged F.I.R. No,19 of 2004 on 12-5-2004 with regard to the same incident stating therein that he had also received firearm injures at his thighs and buttocks at the hands of the complainant party.
3. The post-mortem examination of the body of Fateh Muhammad Jakhrani deceased showed that he had succumbed to the fire-arm injuries. The complainant was also medically examined and was found to have received fire-arm injuries. The police investigated both the cases. Subsequent F.I.R. No,19 of 2004, lodged by the petitioner, was found false and was cancelled. The police found the petitioner involved in the murder of Fateh Muhammad Jakhrani deceased and submitted final challan before the trial Court for his trial. The bail was declined by the Court of Sessions, Hyderabad. Thereafter, the petitioner moved Criminal B.A. No,459 of 2004 which was also dismissed by a learned Single Judge of the High Court of Sindh Hyderabad Circuit, by the impugned order, dated 20-8-2004. Hence this petition for leave to appeal.
4. Mr. Abdul Hafeez Pirzada, Senior Advocate Supreme Court, the learned counsel for the petitioner argued that there was a counter-version of the same occurrence. The petitioner had also received fire-arm injuries in the incident which were suppressed by the prosecution. Therefore, the petitioner was entitled to the grant of bail in view of the dictum laid down by this Court in the case of Shoaib Mehmood Butt v. Iftikhar-ul-Haq and 3 others 1996 SCM R 1845. It was further submitted that statement of an eye-witness Qazi Muhammad Ayub was recorded by the police after a delay of 36 days. The case of the petitioner called for further inquiry in view of the law laid down by this Court in Muhammad Khan v. Mania Bakhsh and another 1998 SCM R 570. It was next contended that P.W.
Sardar Muhammad Aalmani had made different statements to the police thereby making improvements in the prosecution case. Similarly, the police never recorded statement of another eyewitness Syed Ali Muhammad Jamot. The alleged weapon of offence was not recovered from the petitioner.
5. On the other hand, Dr. Qazi Khalid Ali, the learned Additional Advocate-General, Sindh, submitted that the petitioner was specifically named in the F.I.R. To be the single accused who's fire-shot had caused death of deceased Fateh Muhammad Jakhrani. Mere delay of recording statement of a witness under section 161, Cr.P.C. By the police could not be regarded as fatal to the prosecution case. As regards Ali Muhammad Jamot, he was not co-operating with the police in making statement and he had accompanied the petitioner.
6. We have heard the learned counsel for the parties at length. The petitioner is the single accused charged by the police with the murder of Fateh Muhammad Jakhrani by causing fire-arm injuries.
The report of post-mortem, conducted by the Medical Officer, also showed that death of the deceased was caused by the fire-arm injuries. Two of the prosecution witnesses, examined by the police, have supported the prosecution case. The counter-F.I.R. No,19 of 2004 lodged by the petitioner has already been cancelled by the police after investigation.
' We need not undertake an exercise of deeper appreciation of the evidence collected by the prosecution in this case as it may prejudice the case of either side during trial. Prima facie, the offence falls within the prohibitory clause of section 497, Cr.P.C. The discretion exercised by the High Court in declining bail to the petitioner is neither arbitrary nor perverse. In our view, this is not a fit case for grant of leave to appeal.
7. For the foregoing reasons, we do not find any merit in this petition which is dismissed and leave to appeal is refused accordingly. We may, however, make it clear that any observations made by the High Court in the impugned order, for the limited purpose of bail, would not affect the merits of the trial in any manner whatsoever.