' SHAHNAWAZ TARIQ, J.---Being aggrieved and disappointed with the order dated 22-11-2012, passed by the learned II-Additional Sessions Judge, Khairpur, in Sessions Case No.268 of 2012, culminating from F.I.R. No. 9 of 2012 of Police Station B-Section, Khairpur, registered under sections 302, 337H(2), 114, 148 and 149, P.P.C. At Police Station B-Section, Khairpur, the applicant Din Muhammad alias Dino has brought instant bail application before this Court.
2. Brief facts for the purpose of instant bail application are that, the complainant Ghulam Farooque Junejo lodged the aforesaid F.I.R. Stating therein that on 15-1-2012, at 2355 hours, that on the same day, the complainant along with his brother Abdul Kadir, aged about 24/25 years and his nephew Abdul Wahid left their house for purchasing house hold articles from the village shop. At 6-30 p.m., when they reached near the shop of Yar Muhammad Junejo, they saw accused Din Muhammad alias Dino Junejo, Azhar Hussain armed with pistols, Ghulam .Mujtaba alias Taro Junejo with pistol, Fiaz Hussain Shah armed with gun, Munawar Ali Shah armed with .222 rifle and Khuda Bux Junejo.
Accused Khuda Bux Junejo instigated accused Dino Junejo that as Abdul Kadir had misbehaved with him hence he should kill Abdul Kadir. On such instigation, accused Ghulam Mujtaba Junejo, Fayaz Hussain Shah, Munawar Shah pointed their weapons upon complainant party to remain silent; while accused Din Muhammad alias Dino fired from his TT pistol at his brother Abdul Kadir with intention to kill him, which hit Abdul Kadir on his right side of abdomen. Accused Azhar Shah also fired at Abdul Kadir, which hit him on his right side of cheek. He fell down on the earth. Due to fear of weapons, the complainant did not go near the accused. Then all the accused escaped away towards eastern side while firing in air. On the cries and fire arm reports, P. Ws. Feroze Ali Junejo and other villagers came running there. The complainant then took the injured with the help of villagers to Civil Hospital Khairpur for immediate treatment where during the treatment he died.
The complainant then went to Police Station "B" Section, Khairpur and lodged the F.I.R.
3. During the investigation, present applicant/accused was arrested and on completion of investigation, challan has been submitted in the court.
4. Mr. Ghulam Shabeer Shar, learned counsel for the applicant has contended that the applicant has falsely been involved in the instant crime due to bloodshed matrimonial dispute. All co- accused have been granted post-arrest bail by the trial court as well as this court, so the rule of consistency may be considered in the interest of justice. He, further contended that there was a sectarian incident as parties are belonging to Shia sect and Sunni sect and such fact has been mentioned by DIG Police in letter dated 10-2-2012, whereby investigation of instant crime was transferred from Police Station B-Section, District Khairpur to DSP Shoukat Ali Abbasi of Sukkur Range with directions to reinvestigate the case on merits. Thereafter D.I.G. Police in another letter dated 14-2-2012, addressed to Inspector General of Police Sindh Karachi, to transfer said case to crime branch for further investigation, by keeping in view the sensitivity of the case which relates to an issue between Shia and Sunni sects. The complainant has suppressed the real facts and with ulterior motive has involved the present applicant in the above matter.
5. Learned counsel for the applicant has further submitted that there is unexplained and inordinate delay of six hours in registration of F.I.R, which creates reasonable doubt. No crime weapon has been recovered from the possession of applicant and the alleged offence as per F.I.R. Had occurred at 6-30 pm, while on the day of incident the time of sunset was 5-58 pm, therefore, there was darkness at the place of incident but complainant has failed to explain how he identified the applicant and specific role was also assigned to him. He further contended that post mortem report also mentions number of crime while admittedly post mortem was conducted earlier at hospital before the lodging of F.I.R. At P.S. At 2355 hours, but amazingly number of F.I.R. Has been mentioned therein which has created serious doubt in this regard.
6. In support of his contentions, the learned counsel for the applicant has relied upon the case of Gyasuddin v. The State, 2006 SLJ 179, wherein it has been held that complainant had specifically named each and every person in F.I.R, but three of them were released by police. There was delay of 13/30 hours in lodging of F.I.R; although F.I.R was lodged on 22-6-2005 at 8-30 but post-mortem which was conducted on 22-6-2005 on 9-00 a.m. And continued for 45 minutes also mentioned crime No how medical authorities anticipated specific F.I.R number which was going to be registered after 11/12 hours; as per receipt available on record, rifle which was allegedly recovered from applicant had actually been purchased after said occurrence. Bail after arrest was granted.
Counsel for the applicant has also relied upon the case of Ahmed v. The State, 2007 PCr.LJ 987 (Karachi), wherein it has been held that three accused had allegedly fired at deceased and it was very strange that complainant had even mentioned as to which accused had fired at what part of deceased; when there was instant scuffle resulting into firing; two accused who had allegedly fired at deceased, had been let off by the police despite the fact that they had been assigned specific role. Case of accused needing further inquiry, he was granted bail.
7. The circumstances mentioned in citations supra are quite distinguishable from the facts and circumstances of the case in hand, as no culprit has been let off by the police in present case. The delay in lodging of F.I.R. Has been explained appropriately, as according to the F.I.R., the deceased was shifted by the complainant to hospital after sustaining bullet injuries, and during the course of treatment the injured 0 had succumbed to his bullet injuries. Thereafter post mortem of the corpse was conducted on 15-1-2012 at hospital but post-mortem report was issued not issued then and there but it was issued after a week i.e. On 22-1-2012, therefore, mentioning of the crime number in post mortem would not help the defence. In present case, there was no any alleged scuffle between the parties and specific role of firing and causing fatal injury to the present applicant has been attributed.
8. The learned counsel for the complainant while vehemently opposing the request of bail, has argued that complainant and accused party are residing in same village and are well known to each other personally. The complainant along with the deceased and another P.W. Went to purchase certain articles from muhalla shop where electric light was also installed. Further contended that it was just after Maghrib prayer time and there was no such deep darkness, therefore, there was no difficulty for the complainant to identify the accused persons. He further contended that there was an exchange of hot words between the parties due to quarrel of their children few days ago, as such they were not on talking terms. He admitted that both parties are belonging to different sects but the instant incident was not a sectarian issue and motive of incident was the annoyance upon the exchanging of hot words between the parties, but the applicant is malafidely trying to twist his guilt into a sectarian issue.. He further contended that after sustaining bullet injuries, the injured namely Abdul Qadir was immediately shifted to hospital for treatment where during the treatment he succumbed to his injuries. Thereafter post mortem of the deceased was done by the doctor. Then the complainant lodged F.I.R. At Police Station therefore, the delay in this regard was neither deliberate nor intentional but due to the vindicating circumstances.
9. In support of his case, the learned counsel for the complainant has relied upon the case of Dilawar Khan and another v. Iqbal Khan and another, 2010 PCr.I2 502, wherein it has been held that record had revealed that respondent/accused had the same role as that of co-accused whose bail had been cancelled. High Court without going into further merits of the case, held that accused was not entitled to bail, bail was cancelled in circumstances. He further .Relied upon the case of Gohram and another v. The State 2012 M LD 1927, wherein it has been held that applicants being members of unlawful assembly are also facing the charge of committing the murder in prosecution of their common object punishable under section 149, P.P.C. Which provides usual punishment as that of the principal accused. Furthermore, the applicants/accused are specifically alleged for causing fire shots injuries to the P.W. Mst. Shahzadi with intent to commit her Qatl-e- Amd which allegation also finds support from the medical evidence. So far the plea of defence counsel regarding the conflict in medical report and ocular evidence is concerned, the opinion of the Medical Officer regarding the nature of weapon a shotgun used in this crime seems to be immaterial as admittedly the doctor had not seen the occurrence, therefore, Will not be in position to say about the weapon used in the crime unless the injuries are opined as pallet or bullet injuries.
There appears reasonable grounds for believing that applicants are involved in the offence, hence, bail application stands dismissed. He has further relied upon the case of Mst. Qudrat Bibi v.
Muhammad Iqbal and another, 2003 SCM R 68, wherein it has been held that Court at bail stage should not have stamped the prosecution witness who had recorded their statements promptly to be false witnesses and accepted the statements of defence witnesses whose statements were recorded after considerable period of the occurrence by the Investigating Officer to conclude that the accused was innocent. Reasons prevailed upon the High Court as well as the Sessions Court were, therefore, not acceptable being contrary to the principle of settled law. Over act attributed to the accused of causing hatchet injury to the deceased was corroborated by medial evidence.
Petition for leave to appeal was converted into appeal in circumstances and allowed as a result whereof pre-arrest bail granted to accused was recalled. He further relied upon the case of Balach v. The State, 2010 PCr.LJ 509, wherein it has been held that accused along with others had allegedly murdered 25 years old young man. During investigation accused was found guilty and he was facing the trial. Ocular evidence and medical evidence apparently were not at conflict, but minor contradiction, if any, could not be resolved through deeper appreciation of the same at bail stage.
Bail was declined to accused in circumstances. Material collected by the prosecution during investigation is tentatively assessed, while deciding a bail application.
10. Conversely, the learned A.P.G. Supports the impugned order and opposes the grant of bail to the applicant on the ground that both parties are known to each other and residing in same village and the incident had occurred near the village shop. He further contended that admittedly post mortem of the deceased was conducted after his death during the course of treatment at hospital but post mortem report was issued on 22nd January 2012, therefore, the number of F.I.R. Was mentioned in post mortem report as a routine correspondence. He further contended that the specific role has been assigned to the accused and pistol has also been recovered, therefore, the case of present applicant is not on same footing of the accused to whom bail has been granted, and deeper assessm ent of evidence at this stage would seriously damage the case of prosecution.
11. I have heard learned counsel for the respective parties as well as A.P.-G. For the State, and perused the material placed on record,
12. In the case of Khalida Bibi v. Nad'eem Baig, PLD 2009 SC 440, it has been held that Court under S.497(2), Cr.P.C. Was not to ' make probe into defence version in order to advance a plea of bail, rather it had to tentatively assess the material produced before it and to see if reasonable grounds existed to believe, if prima facie, involvement of accused in the commission of 'offence. If the plea on the basis of which the accused had been released on bail was accepted, would impugn the version .Of the eye-witnesses which had been discarded at the initial stage of the case by observing contra to the version of ocular witnesses; which course was at all not permissible and later on no such evidence was furnished, then it would not be free from doubt and in accord with S.497(2), Cr.P.C. Evidence of eyewitnesses, in the present case, .Had been discarded even in view of the medical opinion by the Trial Court, as well as by the High Court. Police, during the investigation was not required to examine hundreds of people in order to inquire as to whether the accused was involved in the offence or not. Police was required to consider the material available on the record and not to disregard the eyewitnesses in support to say that he was not involved in the commission of the offence, and thus, would not only be entitled to grant of bail but at the same time to earn acquittal. Practice adopted by Trial Court as well as by the High Court, peculiar circumstances of the case, was not appreciated by the Supreme Court. Reasons on which bail had been extended to the accused were not sustainable in the eye of liw. Supreme Court 'converted petition for leave to appeal into appeal and cancelled the bail granted to accused by High Court.
Accused present in the Court was ordered to be taken into custody and be dealt with in accordance with law. In the case of Raja Muhammad Irshad v. Muhammad Bashir Goraya and others, 2006 SCM R 1292, it has been held that while considering the request of the accused for his release on bail, a deep appreciation of evidence is not called for and the Court seized of the matter in terms of S.497(1), Cr.P.C. Is required to make tentative assessment of evidence available on record. In the case of Ayaz v. The State, 2011 PCr.LJ 177 (Karachi), it has been held that deeper appreciation of evidence cannot be gone into and only it is to be seen as to whether accused is prima facie connected with commission of offence or not. In the case of Shoaib Shahid v. The State, 2011 PCr.LJ 1896 (Lahore), it has been held that accused was nominated in the F.I.R. With specific role that he murdered his real paternal uncle by firing a shot which hit him on the chest; which was duly supported by the post mortem report Case of accused fell within the prohibitory clause of S.497, Cr.P.C. No case for grant of bail having been made out, bail petition was dismissed.
13. From the detailed discussion of the circumstances and case-laws relied upon supra, it has transpired that admittedly both parties are residing in same village and already well known to each other. It is alleged that prior to the incident there was quarrel between the children and after exchange of hard words, the parties were not on talking terms with each other. Furthermore, though both parties are belonging to different sects but at present no evidence is available on record to indicate that the alleged offence was result of any incident duly occurred between Sunni and Shia sects. Moreover, it has been emerged that applicant/accused is specifically named in report and direct and particular role has also been described in the F.I.R. Whereby allegedly applicant fired shots directly to the deceased from his pistol which ultimately resulted in to the death of the deceased. During the course of investigate, the accused himself got recovered and produced such pistol being crime weapon by leading to the police to the place where it was hidden by the applicant after commission of the alleged offence and such mashirnama was also prepared on 4-2-2012. The question of darkness at the place of incident which is situated near to the village-shop where complaint party had gone to purchase house hold articles, could not be determined or considered at this initial stage, as it is well settled principle of law, that the deeper appreciation and discussion of the evidence at the bail stage would definitely affect the case of either party. Moreover, I am agreed with the contentions of the learned A.P.-G. That although post mortem of corpse was conducted soon after the death of the deceased in hospital, but post mortem report was not issued on same day, and same was issued on 22-1-2012 and number of F.I.R. Was mentioned in post mortem report on the strength of subsequent routine correspondence.
14. The next contention of the counsel for the applicant pertaining to the consideration of rule of consistency is concerned, the basic theme and philosophy of this rule is to scrutinize thoroughly and strictly covering each and every aspect of the role performed by one culprit during the commission of the offence with other co-accused persons of the same offence, therefore, mere granting of bail to one of the culprit nominated in F.I.R., does not create any space to extend the concession of bail for remaining perpetrators unless the material available in case prima fcie indicates same set of allegations. The applicant in present case, is main culprit who fired shots directly from his pistol which hit the deceased at right side of his abdomen which ultimately resulted into the death of the deceased, therefore, the role of applicant cannot be termed at par to the role of remaining co accused to whom bail has already been granted.
15. I am of the considered view that while concluding the comprehensive discussion of the various legal aspects of the bail application in a case where capital punished is involved ,for the alleged offence, it is mandatory and prime duty of the court while considering the question for grant of concession of bail to accused, to avoid to discuss at length the main aspects of the prosecution case as such findings and observations of the court would seriously affects the merits of case of either party, and impact of influence upon trial Court could not be ruled out, therefore, deeper appreciation of the evidence could not be gone into at bail stage and tentative assessment of the available evidence just be made only to find out, as to whether accused was prime facie connected with offence or not. Accordingly, the applicant in present case has failed to make out a prima facie case for consideration of concession of bail at this initial stage.
16. For the foregoing reasons, circumstances and rulings discussed supra, the applicant has failed to make out a prima facie case for his enlargement on bail, therefore, instant bail application stands dismissed having no legal substance, however, the applicant is at liberty to repeat his bail application before the trial court after recording of evidence of the c complainant and eye- witnesses, if so advised.
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11. The observations made hereinabove are tentative in nature and the trial Court shall not be convinced by any such reflection and adjudicate the trial of the case purely on merits and on the basis of evidence adduced by the prosecution as well as the defence.