1. ' SYED SHAFQAT ALI SHAH MASOOMI, J.-The applicant is seeking bail in Crime No,247/2008 Police Station Section Khairpur under section 302/34, P.P.C.
2. ' The facts of the prosecution case as unfolded in the F.I.R, lodged by complainant Imtiaz Ali on 17- 11-2008 at 1100 hours are that in the year 2006, one Shamsuddin was murdered in which case Mst.
3. Sughra wife of complainant was challaned, whereupon brothers of deceased Shamsuddin Kathwar, namely Dur Muhammad and Talib were annoyed and they used to say that they will kill her. On the incident i.e, 17-11-2008 brother of complainant Nooruddin went to Session Court Khairpur for hearing whereas the complainant along with his uncle Ghulam Asghar and brother-in-law Hadi Bux were going to Khairpur for some work, when at about 1030 hours they reached at Osta Gohi Muhalla, where the complainant saw that his brother Nooruddin was returning and in the meanwhile four persons boarding on two motorcycles came from western side. The complainant identified said person to be Dur Muhammad, Talib, Wasoo and Jamshed. They took out pistols and made straight fires indiscriminately upon his brother Nooruddin, which hit him and he fell down, such fire was also hit by one passerby lady Mst. Ameer Khatoon. Therefore, all the accused persons went away. The complainant party noted that Nooruddin sustained 7 injuries on right arm and on face and he was died. Then the complainant after leaving the witnesses over the dead body went to police station and lodged F.I.R, as stated above.
4. ' Heard the learned counsel for the applicant and learned counsel for the complainant and learned A.A.-G. For the State. Both the learned counsel for the complainant and State opposed the grant of bail.
5. ' From the perusal of record it reveals that the name of the applicant appears in the F.I.R, along with specific role that he along with other co-accused fired on deceased, who fell down on the road and died at the spot. The offence took place on 17-11-2008 at 10-30 a.m. In the broad day light and immediately after the incident the F.I.R, was lodged on the same day at 11,00 a.m. The crime weapon along with two live empties have also been recovered from the applicant/accused. The statement under section 164 Cr.P.C, of Ghulam Asghar and Hadi Bux have been recorded by lst Civil Judge and Judicial Magistrate Khairpur in which both these eye witnesses have assigned the role to the applicant/accused that he along with co- accused fired with crime weapon at the deceased Nooruddin who sustained 7 injuries and one lady Mst. Ameer Kliatoon, who was passing on the road at the time of incident has also sustained two injuries. Deceased Nooruddin died on the spot whereas Mst. Ameer Khatoon died later on. The enmity shown in the F.I.R, is double edged weapon which cannot be used for either side. However, the motive is given that the deceased was killed on enmity. As far plea raised by learned counsel for the applicant regarding the contradiction between medical and ocular evidence that Doctor has opined gun shot injury but it is matter of evidence of doctor whether the injuries were caused by bullet or not, therefore, in the present case the case law citied by the learned counsel for applicant reported as Saifullah and another v. The State (2001 PCr.LJ 110), AH Gul v. The State 2007 YLR 824, Lakhmir Kurio v. The State 2005 YLR 1467, Hussain Ahmed v. The State 2004 PCr.LJ 669 and Jaffar and others v. The State 1980 SCM R 784, is distinguishable with the facts and circumstances of the present case. The case law reported as Mst. Noor Habib v. Ghulam Raza and others 2009 SCM R 786 and Janan alias Jano Chandio v. The State PLD 2009 Kar. 265 relied upon by the learned counsel for the complainant fully identical to the present case.
6. For the foregoing reasons the applicant has not made out a case of further enquiry as the offence comes within the prohibitory clause of section497(1), Cr.P.C, therefore, this bail application is dismissed having meritless. However, the applicant after recording the evidence of Doctor regarding the conflict between medipal and ocular evidence may repeat his bail application before the trial Court if so advise.
7. ' 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.