' ZAFAR AHMED KHAN SHERWANI, J.--- This is a bail application under section 497, Cr.P.C. In Crime No,55 of 2006 of Police Station Tandojam: under section 17(4) of the Offences Against Property (Enforcement of Hudood) Ordinance, 1979 on account of arrest of the applicant/accused by the police on 14-7-2006. His bail application in Sessions Case No,282 of 2006 moved before the learned IVth Additional Sessions Judge, Hyderabad was dismissed on 17-2-2007.
2. The brief facts of the case of the prosesution are that the above F.I.R. Was registered on 3rd July, 2006 at about 1200 hours in respect of the incident of even date which took place at about 0300 hours, in which complainant, Shankar, resident of Village Hussain Khan Thora, Taluka and District, Hyderabad stated that he was sleeping in his house and got up hearing some noise so also his brother, Zaitoon and saw three persons including the applicant, in the electric light, armed with weapons standing in the courtyard. The applicant had pistol in his hand whereas remaining unidentified two persons were having guns. The culprits on the strength of their weapons asked them to hand over keys of the A1mirah of their house and on account of fear they handed it over to them. The two unidentified culprits went inside the room whereas the applicant stood guard on them. When the two unidentified culprits brought valuables from the Almirah detailed in the F.I.R.
Including gold ornaments and cash wroth of Rs,1,74,000 they all left the house they (the complainant and his brother Zaitoon) tried to apprehend them but they resisted, and the applicant fired from his pistol directly towards his brother Zaitoon who fell down receiving injury on his right ribs and the culprits made their escape good. On their cries their third brother Mathomal and other relatives were attracted. The injured was immediately brought at the RHC Hospital whereas Mathomal informed to the police on phone. The police reached at RHC Hospital but the injured succumbed to the injuries. After the post-mortem and other necessary formalities and documentation the dead body was brought at his village and after his funeral, the F.I.R. Was lodged nominating the applicant. During the investigation of the case the applicant/accused was arrested on the above mentioned date i.e. 14-7-2006 on whose pointation a pistol was secured on 29-7- 2006.
3. The learned counsel for the applicant has pressed his bail application under subsection (2) of section 497, Cr.P.C. On the following grounds:---
(l) That there is delay of nine hours in lodging the F.I.R., therefore, nomination of the accused after due deliberation cannot be ruled out.
(2) That there appears no reason as to why the applicant/accused would come with open face to commit the offence when he could commit the offence with muffled face, therefore, the story of the prosecution appears to be unbelievable and the guilt of the applicant requires further enquiry..
(3) That the applicant has been nominated on account of political rivalry as well as other disputes.
(4) That the was registered after the post-mortem which is illegal. Moreover, its report depicts the number of the F.I.R. Which shows the mala fide on the part of the police in the investigation of the case and makes the applicant entitled for the bail in view of law laid down in the cases of Parial v.
The State 2006 PCr.LJ 1212, Khoro and others v. The State 2004 YLR 2434 and Gyasuddin v. The State 2006 SLJ 179.
(5) That one of the unidentified, accomplice of the accused namely Sikander has been granted bail by the learned Sessions Judge, Hyderabad on the ground that the complainant had nominated him in his further statement.
(6) That for the purpose of bail law not to be stretched in favour of the prosecution and, therefore, benefit of doubt if any arising must go to the .Accused. He has relied upon the case of Aamir v. The State 1972 SC 272 (sic).
4. Conversely, the learned State counsel has vehemently opposed the above arguments and contended that the accused/applicant has been nominated in the F.I.R. Which is based on unmistaken identity because he is the resident of the same village where the complainant resides and, therefore, he was previously known to him and mere fact that the crime number has been mentioned in the post-mortem report is of no impact on the case of the prosecution because this point can be cleared by the Medical Officer when he is examined by the trial Court. He also contended that the registration of the F.I.R. Is not precondition for the investigation of the case and if the post-mortem was made prior to the registration of the F.I.R. The accused does not become entitled for grant of bail when his case is not covered under the ' provisions of subsection (2) of section 497, Cr.P.C. He has relied upon the case of Hakim Ali v. The State 1996 SCM R 1855.
5. I have carefully considered the above arguments in the light of the record and the case-law relied upon by both the counsel.
6. During the course of arguments the learned counsel for the applicant conceded that the accused can only be granted bail if his case is covered within the ambit of "further enquiry" as provided under subsection (2) of section 497, Cr.P.C., therefore, it is to be examined that whether the accused is entitled for the concession of bail under the said provision. In this regard the case of the prosecution against him as set forth in the F.I.R. Is that the complainant has alleged that the accused was previously known to him being his co-villager and his face was open at the time of incident, the electric light was there he was seen by the complainant armed with pistol along with two unidentified accomplices, and he interacted with him when he and his accomplice demanded keys from him and his brother who after taking- the same from them his accomplice robbed the articles including the gold ornaments and cash. During this time he stood guard on both of them.
There is clear allegation that when the complainant and his deceased brother tried to apprehend them after the robbery he directly fired on his brother and succeeded in decamping. There remains nothing with regard to the identity of the applicant/accused as well as his active role in the commission of the offence.
7. With regard to the delay of few hours in lodging the F.I.R. I am of the view that since it has been satisfactorily explained by the complainant that during this period he and his brother remained busy in the funeral ceremony of the deceased, which is quite natural, therefore, the same is of no consequence. Though the police had come at the hospital and could possibly initiate the action itself but usually they do not do so and wait for the aggrieved person to lodge proper complaint giving details of the incident. Even otherwise, the delay in this particular case cannot be fatal because there is no proof that the complainant had any enmity with the accused for which he has been falsely implicated after deliberation in this regard. Mere assertion by the learned counsel is not sufficient. The second ground taken by the learned counsel for the accused, about the mystery of mentioning the F.I.R. Number in the postmortem report which was conducted by the Medical Officer in RHC Hospital earlier to its registration too cannot be the sole ground for grant of bail keeping in view the other circumstances of the case. Moreover, this discrepancy can only be explained by the doctor who had conducted the post-mortem and prepared such report. Anyhow, the complainant or the police is nothing to do with this discrepancy. It would not be out of place to mention here that the learned counsel did not produce along with the application the post- mortem report of the doctor. Be that as it may, I am not impressed with these arguments. This cannot be in any case a sole ground to discard the entire case of the prosecution all the three cases relied upon by the learned counsel for the accused on this point are quite distinctive from this case because in those cases the previous enmity between the parties was admitted by the complainant and the delay in lodging the F.I.R. Had not been explained satisfactorily, therefore, the mentioning of the crime number in the post-mortem report was an additional factor to doubt the case of the prosecution at the bail stage whereas, in the present case there is no such situation.
The remaining grounds taken by the learned counsel for the accused in support of the grant of bail are also flimsy in nature, therefore, not sufficient to hold that the case of the accused is within the ambit of further enquiry as provided under subsection (2) of section 497, Cr.P.C. In these circumstances, I do not find any merit in this application and the same is dismissed.