1. ' NISAR MUHAMMAD SHAIKH, J.---The applicant Ghous Bux has approached to this Court for grant of post-arrest bail on rejection of his similar application vide order dated 20-9-2011 passed by learned Additional Sessions Judge, Kashmore in connection with Crime No,138 of 2010 of Police Station Buxapur under sections 302, 114, 148 and 149 P.P. C .
2. ' As per the F.I.R. Lodged by complainant Abdul Shakoor on 18-9-2010 at 4-15 p.m., the incident took place on the same day at about 6-00 a.m when the five accused persons who are nominated in the F.1.R. Including the applicant Ghous Bux, came duly armed with, hatchets and on account of dispute over water roatation, the applicant/accused Ghous Bux instigated co-accused to commit murder of Muhammad Shahban, the brother of complainant. It is further alleged in the F.I.R. That the applicant/accused Ghous Bux as well as the remaining four accused namely Wazir Ahmed, Muhammad Pannah, Sohrab and Yaqeen Ali caused hatchet blows which hit at the head of the said Shahban, with the result he fell down and died at the spot. He had injuries at his head as well as nose and left leg. Due to cries of the complainant party. P. Ws. Also arrived there, then they took the dead body to the hospital and the complainant, after postmortem examination and burial of the dead body, reached at police station and lodged such F.I.R.
3. ' Learned counsel for the applicant contends that there is delay of about 11 hours in lodging the F.I.R.
4. By the complainant after narrating the incident to his relatives and getting the postmortem examination of the dead body at the hospital therefore, such delay creates doubt in the alleged story. He also contended that though all the five accused had allegedly caused hatchet blows but the medical certificate shows only three hatchet blows sustained by the deceased at his head while the remaining two injuries allegedly sustained by the deceased at his nose and leg are not described in the very F.I.R. Therefore, case needs further inquiry as to which of the accused, out of 5 accused, caused three fatal blows at the head of the deceased. He also contended that the co- accused Yaqeen Ali who was assigned identical role in the very F.I.R., like the co-accused including the present applicant, was let off by the police during investigation when he was found innocent therefore, this very fact makes the case of prosecution to be one of further inquiry. In support of his contention he also placed reliance on the cases reported as 1980 SCM R 784, 1987 PCr.LJ 1404, 2008 SCM R 249, and 2002 PCr.LJ 79.
5. ' On the other hand, learned State Counsel contended that the applicant is not entitled for bail as the accused caused five injuries with their hatchets to the deceased. With the result he died at the spot. He also pointed out that the injuries sustained by the deceased at his nose and leg are also mentioned in the very F.I.R. And the medical evidence also corroborates the version of the complainant. In support of his contention he also placed reliance on the cases reported as PLD 1994 SC 65, 1996 PCr.LJ 74 and 2006 PCr.LJ 1256.
6. ' Whereas learned counsel appearing for the complainant submits that the co-accused Yaqeen Ali who was let of by the police was subsequently joined by the trial Court and now he is facing trial, but the remaining three accused nominated in, the F.I.R. Are still absconders. He also submitted that it was a day time incident and the crime weapon i,e, Hatchet was also secured from the possession of the applicant. In addition to above, he also placed on record the certified true copies of the diaries of the case pending before the trial Court to show that almost on all the dates of hearing, the complainant and P. Ws. Have been attending before the trial Court since after the charge was framed on 15-11-2011 but the applicant Ghous Bux has been seeking adjournments on one or the other pretext to delay the trial of the Case.
7. ' I have considered the above submissions and perused relevant record and also gone through the case-law, relied upon by learned counsel for, the parties.
8. ' In the case of Jaffer and others v. The State (1980 SCM R 784) as cited by learned counsel for applicant, the bail was allowed on the ground that the material on record did not show as to which of the accused caused fatal injury. Similarly in the case of Muhammad Ameen v. The State (1987 PCr.LJ 1404), the bail was granted as there was no evidence to show as to which of the petitioners, who were armed with lathies only, caused fatal injuries to deceased. In the cage of Mohammad Azam v. The State (2008 SCM R 249), three co-accused were found innocent during police investigation and the case of petitioner was found at par with such co-accused therefore, he was found entitled to the equal treatment like the said three co-accused. Whereas in the case of Zulfiqar v. The State (2002 PCr.LJ 79), the bail was granted to the accused as the injuries stated by the complainant in the F.I.R. Did not find place in the postmortem report and due to such inconsistency between the ocular and medical evidence, the case was found to be one of further inquiry.
9. ' On the other hand, learned State Counsel has placed reliance on the case of Shah Zaman and 2 others v. The State (PLD 1994 SC 65), in which it was held that the fact that in F.I.R. It had not been pointed as to which assailant was armed with what weapon and who caused fatal injury, would not make any material difference as far as conviction on the basis of charge under section 302, P.P.C. Was concerned. It was further observed in such case that it was not fit for grant of bail on the ground of further inquiry and was seemingly covered by restriction as contemplated under section 497(1), Cr.P.C. In another case of Nawaz alias Nazim (1996 PCr.LJ 74), the bail was declined to the accused whose conduct had prima facie made him desperate person to bring his case within the ambit of fourth, proviso of section 497(1) Cr.P.C. Whereas in the case of Farukh Qadri v. The State (2006 PCr.LJ 1256), bail was declined as the P.Ws were present on more than ten dates but case did not proceed.
10. It appears from the above that this case of murder is hotly contested one, to the extent that the application for cancellation of bail granted to the co-accused Yaqeen Ali is still pending before this Court as disclosed by the learned counsel for the parties and that the diaries of the case pending before the trial Court, also support the contention of learned counsel for the complainant that the complainant as well as P.Ws. Have been attending the trial Court for their evidence but it is the applicant who has been seeking adjournments on one or the other pretext. Such conduct of the applicant does not entitle him for concession in a murder case specially when there appears reasonable grounds to believe that he is guilty of the alleged offence. The points raised by the learned counsel for the applicant could be considered properly after recording the evidence of the complainant and P.Ws. Who have been in attendance before the trial Court on almost each and every date of hearing and there appears no explanation for such delay in the trial of the case, attributed to the applicant. Thus, the facts and circumstances of the reported cases as cited by the learned counsel for the applicant, are distinguishable to this case. Even otherwise, the alleged delay in lodging F.I.R., seems to have been explained in the very F.I.R., which also shows that all accused have acted in furtherance of their common intention and the present applicant, in addition to his act of inflicting hatchet blow, was also assigned the role of instigation for commission of alleged murder.
11. ' In view of the above, I do not find any reasonable ground for grant of bail at this satge of case and accordingly, this bail application of the applicant is hereby dismissed, with direction of the learned trail Court to record the evidence of material P.Ws. Within a period of four months and thereafter, the applicant shall be at liberty to repeat his application to be decide by the trail Court on its merits.