1. TUFAIL H. EBRAHIM, J.---By this order I intend to decide the instant Criminal Bail Application filed by applicant/accused Abdul Latif Budh in a case arisen out of F.I.R. Crime No,42 of 2010 registered at Police Station Kandiaro for offence under sections 302, 337-H(2), 504, 34 P.P.C..
2. The brief facts of prosecution case as unfolded in the F.I.R. lodged by complainant Saifal Khan Ghangro on 9-4-2010 at about 2100 hours are that his brother Fazul Muhammad was running business of Lemon fruit, some days back lemons had been plucked from the garden, which was on the lease with his brother who came to know, that Abdul Latif and Badal Budh had plucked those lemons, complainant's brother Fazal Muhammad had approached them and protested as to why they had plucked his lemons, harsh words were exchanged between his brother and Abdul Latif as well as Badal Budh who also extended threaths to his brother.
3. It is further alleged that on 8-4-2010 complainant along with his brother Fazul Muhammad were coming from Kandiaro Town towards their village on motorcycle, his brother was driving the motorcycle while the complainant was sitting behind him when at about 2115 hours, when the complainant party reached near Banana garden of Muhammad Hashim Sahito on Lakha link Road, they saw on the light of motorcycle, that four persons duly armed, were standing on a road with open faces, among them were Abdul Latif armed with Rifle, Badal Budh armed with K.K while two persons were unidentified, who could be identified if seen again, who were armed with guns, they directed them to stop but Complainant party did not stop their Motorcycle. In the meanwhile accused Abdul Latif Budh made direct fire at his Brother, which hit him on his back, who raised cry then they both felled down from the motorcycle in the meanwhile Wali Muhammad and Iqbal Ghanghro arrived there on their motorcycle, they also saw the accused persons firing and identified them thereafter, all the accused persons went away firing in the air and shouting abusing language. The complainant saw that his brother had succumbed to his injuries and died. The complainant narrated the facts of incident to the witnesses and with their help brought the dead body and left it in their custody at government hospital at Kandiaro. Thereafter complainant went to inform the police at Police Station concerned. After completing the necessary formalities as well as burial of the dead body complainant appeared at Police Station where who lodged F.I.R.
4. The bail application on behalf of the applicant/accused was filed before the Sessions Court but his bail plea was turned down by Additional Sessions Judge Kandiaro vide order dated 24-8-2010, therefore the present bail application has been filed before this Court.
5. The learned counsel for the applicant/accused has argued that there is delay of more than 23 hours in lodging of the F.I.R. The applicant/accused is innocent and has falsely been implicated in the case by the complainant due to enmity. Per learned counsel the incident has taken place in darkness of night and there is no independent witness. Per learned counsel the complainant was allegedly sitting on back side of deceased on the motorcycle and was not in a position to identify the applicant/accused and the complainant for mala fide reasons has fabricated this story to falsely implicate the applicant/accused in the case. Per learned counsel it was not possible that the bullet could hit the deceased from back side if the complainant was sitting on the motorcycle behind the deceased. It is further surprising that deceased has received 7 injuries as per medico- legal certificate whereas the complainant did not receive any single injury. Per learned counsel no private mashirs were included at the time of the alleged recovery and the co-accused have been granted bail by the trial Court and as a rule of consistency the applicant/accused is also entitled to the benefit of bail. Per learned counsel it is fit case for further enquiry within the meaning of subsection (2) of section 497, Cr.P.C. In support of his contentions the learned counsel for the applicant/accused has relied upon the following case law.
(i) 2001 PCr.LJ 344.
(ii) NLR 2004, Criminal cases 1029.
(iii) 2007 MLD 340.
(iv) 1983 PCr.LJ 892.
(v) 2003 SCMR 201.
6. (vi)PLD 1997 Karachi 484.
7. On the other hand the learned counsel appearing for the complainant has argued that the applicant/accused has been nominated in the F.I.R. and specific role has been assigned to him The allegations in the F.I.R. are fully corroborated by medico-legal certificate and the statements of witnesses. Per learned counsel for complainant, the deceased has died due to bullet injury and the police has recovered the rifle from the accused and empties of the rifle and K.K have also been recovered from the scene of incident. Per learned counsel for complainant the bullet went through the left side of the deceased and came out from right side which has fully supported by the medico-legal certificate and since the complainant and accused are resident of same lotality therefore it was possible for complainant to identify the applicant/accused in the light of motorcycle. Learned counsel for complainant in support of his contentions has relied upon the following case law.
(i) 2007 SCMR 482.
(ii) 2008 SCMR. 1372.
(iii) 2010 SCMR 966.
(iv) PLD 2007 Karachi 336
(v) PLD 2009 1.irachi 265.
(vi) 2007 ML p Karachi 1749.
(vii) 1995 SCMR 1765.
8. The learned A.P.-G. has supported the arguments of the counsel of the complainant anti has further argued that there is no delay in lodging of the F.I.R., as Non-Cog (NC) report was immediately made in the station diary of Police Station Kandiaro. The Postmortem report fully corroborated the statements of the Complainant and eye-witnesses and the accused was arrested on 11-1-2010 along with his other companions and recovery of alleged rifle has been made.
9. Per learned A.P.-G the applicant/accused has criminal record and a heinous offence has been committed and therefore the applicant accused is not entitled to the concession of bail.
10. In rebuttal the learned counnl for the applicant/accused has argued that no ballistic renort has been filed by 1 the prosecution and the a alleged recovery has been foisted on the applicant/accused. Per learned counsel of the applicant/accused NC report has been managed and no reasonable explanation has been given for the delayin lodging F.I.R. and the private wituom are relatives of the complainant and they were not present at the time of the alleged incident.
11. I have heard the learned counsel of the parties and perused the record of the case and gone through the caselaw cited by the learned counsel. Admittedly the name of applicant/accused has been mentioned in the F.I.R. with specific role attributed to him. Prima facie doubt arises as to the identification of the applicant's party by the complainant in the light of a moving motorcycle who was allegedly sitting behind the deceased on the motorcycle in the darkness of night; the penetration one bullet through the left back side of the deceased and to the Scape from any injury to the complainant from the alleged volley of shots fired at close range from the applicant's party and falling from the motorcycle. It is also not known whether or when the bullet was sealed and the rifle were respectively sent for ballistic examination. 'It will have to be decided at trial when or whether any threats were extended by the applicant/accused to the deceased and who had plucked the lemons and who had shot the deceased and how and in which manner the recovery was made and whether there was any deliberation and consultation due to delay in the lodging the F.I.R. The co-accused namely Badal Budh, has been granted bail by the trial court and as a rule of consistency the applicant/accused is also entitled to the concession of bail. The challan has been filed and there is no likelihood of tampering of evidence by the applicant/ accused.
12. At this stage it is my tentative view that the case of the prosecution is not free of doubt and the applicant/ accused has made out a case of further inquiry within the meaning of subsection (2) of section 497 of Cr.P.C.
13. For the aforesaid reasons the applicant/accused is granted bail in the sum of Rs,300,000 (Rupees Three Hundred Thousand only) with one surety and P.R. bond in the like amount to the satisfaction of the trial Court. The trial Court should not be prejudiced or influenced by the above discussions which are only tentative and should decide the case in an equitable manner, based on the material available on record and evidence to be adduced at trial.