' GHULAM QADIR LEGHARI, J.---Applicant Saddam Gopang seeks post arrest bail in Crime No,13/2015, registered with Taluka Police Station Larkana, for offences punishable under Sections 302, 148, 149 P.P.C.
' The case of prosecution is that, on 19.02.2015 complainant Mir Muhammad Gopang, lodged FIR with Taluka Police Station Larkana, stating therein that, about three years back his uncle Pir Bux Gopang had obtained the hand of Mst. Salma the sister of Jabbar Gopang for his cousin Muhammad Ayoub in lieu of money and had asked Jabbar and others for marriage of Muhammad Ayoub; who demanded one lac more for giving hand of Salma, to which uncle of complainant Pir Bux Gopang told Jabbar and others that he has no other money, as such they refused to give the hand of Mst. Salma for Muhammad Ayoub. Thereafter, on 15.1.2015, cousin of complainant namely, Muhammad Ayoub and Mst. Salma contracted marriage through Court and Mst. Salma was then residing with her husband Muhammad Ayoub. That, on 18.2.2015, there had been marriage of maternal cousin of complainant namely Ghulam Ali Gopang in village Beero Chandio, as such on invitation of such marriage, the complainant alongwith his uncle Pir Bux, his cousin Muhammad Ayoub along with his wife Mst. Salma and other inmates of house came to Beero Chandio and after finishing ceremonies of marriage in the night; in the morning i.e, on 19.2.2015, they proceeded for their village and were waiting for transport on road near government hospital, as such at about 0700 hours they saw and identified accused, on three motorcycles, namely,
1. Jabbar having pistol in his hand,
2. Saddam with pistol both sons of Punhal,
3. Ayaz having pistol,
4. Allah Dino with pistol; they got down from motorcycles, while on another motorcycle there were accused Mushtaq son of Ghazi Khan Gopang, and 2. Inam son of Qurban Gopang, both were having pistols in their hands and behind them one unidentified accused was sitting, who had pistol in his hand and he could be recognized if seen again; they got down from the motorcycles and while challenging disclosed that they have some account to settle with Muhammad Ayoub Gopang and will commit his murder, saying so, all the accused with their pistols made straight fires at Muhammad Ayoub Gopang and within sight of complainant party, the fires of accused Jabbar, Saddam and Ayaz Gopang hit to Muhammad Ayoub, who fell down by raising cry and rest of accused also made firing. Thereafter, all the accused by boarding on their motorcycles went away towards western directions along with their respective weapons. The complainant party saw that Muhammad Ayoub Gopang was lying dead, as such the complainant party informed the police and brought the dead body to Chandka Hospital, where, complainant left the dead body with above named witnesses and after arrival of police and after conducting postmortem he went to police station and lodged report to the above effect.
' Learned counsel for the applicant mainly contended that, the prosecution witnesses are closely related with each other, therefore, they are interested witnesses. He further contended that alleged incident is said to have taken place at bus stop, where presence of independent persons cannot be ruled out, even then no any independent person has been cited as witness of the alleged incident. Per learned counsel the FIR is delayed for more than eight hours, though distance between place of vardat and the police station is only about five kilometers. He further argued that previous and grudge between the parties have been admitted by complainant himself in the FIR therefore, in the background of previously grudge and ill-will; false implication of the applicant/ accused cannot be ruled out. Learned counsel further contended that, contents of FIR show that all accused persons made straight fires at deceased, while fires of three accused including present applicant hit to deceased, therefore, at this stage it is very strange and hard to believe that the complainant party noticed that out of fires made by seven persons three fires of particular persons hit to deceased. He further contended that the applicant has not been assigned specific role or specific injury, therefore, in these circumstances it would be determined at the time of trial that who caused fatal shot to the deceased. Per learned counsel after investigation co-accused Mushtaq and Inam were released by police while placing their names in column No,II of the challan and by placing names of the co-accused having similar role to the applicant in column No,II of the charge sheet; the investigating agency has not believed the version of complainant. Learned counsel placed his reliance upon cases reported in 1980 SCM R 784 and 2002 PCr.LJ Karachi 494.
' On the other hand, learned Advocate for complainant opposed the grant of bail to applicant/ accused. He argued that Mst. Salma and deceased Muhammad Ayoub had filed harassment petition against police officials and Abdul Jabbar son of Muhammad Punhal the brother of applicant/accused Saddam and others, mentioning therein that the private respondents Nos.6 to 12 have issued threats of dire consequences to the petitioners and on 16.01.2015, order was passed by this Court, wherein notices were issued to the respondents, as well as A.A.G. In the meanwhile, the respondents Nos.1 to 5 were directed to provide protection to the petitioners and matter was adjourned to 23.01.2015; he has produced photocopy of memo of Constt. Petition No, S-40/2015. He further submitted that on 19.2.2015 the applicant/accused along with co-accused persons made direct fires upon deceased resulting into his death. He further contended that according to postmortem report deceased had sustained three fire shot injuries hence ocular evidence is fully corroborated by the medical evidence. He further contended that crime weapon viz, pistol was recovered from the possession of applicant/ accused and mashirnama of place of incident also corroborates ocular evidence that three empties were recovered from the place of incident.
Learned counsel relied upon case of Ali Hassan and another v. The State reported in 1999 YLR 846 (Karachi), and case of Khamiso and another v. The State reported in 1999 PCr.LJ 09 (Karachi).
Learned D.D.P.P adopted the arguments advanced by counsel for complainant.
' I have given due consideration to the submissions of the learned counsel for the applicant and learned D.D.P.P and also perused police papers.
The perusal of FIR as well as 161, Cr.P.C. Statements of P.Ws. Pir Bux and Ghulam Ali shows that accused Jabbar, Saddam and Ayaz all armed with pistols got down from their motorcycle, while another motorcycle came there and accused Mushtaq and Inam accompanying one unidentified accued having pistols came there; formed unlawful assembly in furtherance of their common object, all of them disclosed that they have some account to settle with Muhammad Ayoub and will commit his murder, by saying so all the accused persons made straight fires on Muhammad Ayoub and the fires of applicant Saddam, co-accused Jabbar and Ayaz hit to deceased, who fell down. The applicant has been assigned specific role of making fire upon deceased, hence it cannot be said that he had no intention to commit murder, while causing fire shot to the deceased.
Postmortem report shows that deceased had received three fire shot injuries on his person; injury No,1 on his right shoulder; injury No,2 on right back chest and injury No,3 on his right middle of chest.
The applicant/ accused was arrested on 23.2.2015 and on 25.2.2015 he led the police party and got recovered a T.T pistol from "Beer" Garden. The mashirnama of place of vardat shows that three empties were recovered from the place of vardat, which also corroborates the ocular evidence.
Furthermore, the delay of eight hours in lodging of the FIR has been plausibly explained by the complainant that he after getting postmortem of the deceased lodged the FIR. Whereas relationship of complainant and P.Ws with the deceased is not enough to disbelieve their version at this stage. The contents of the FIR show that they are natural witnesses to the incident.
' In case of Khamiso and another v. The State reported in 1999 PCr.LJ 09 (Karachi), it was held that accused had been charged with common intention to murder the deceased in pursuit of a family vendetta by firing at the deceased with their fire-arms. Immaterial at such stage as to whose shot proved fatal. Case against accused in view of the material available with the police did not fall within the scope of further inquiry as contemplated under Section 497(2), Cr.P.C. Bail was refused to accused in circumstances.
' In the case of Ali Hassan and another v. The State reported in 2011 YLR 846 (Karachi), it was observed that direct role had been assigned to accused in the FIR, which had been fully supported by the statement of the prosecution witnesses in their statements under Section 161, Cr.P.C; and medical report also supported the case of the prosecution. Recovery of gun was also effected from the accused and empties were found at the place of vardat. Bail was denied to the accused.
' Keeping in view the material discussed above, and the law laid down in the case law relied upon by learned counsel for complainant, I am of the considered view that the applicant has not been able to make out a case for grant of bail in his favour. Consequently, instant bail application stands dismissed. The facts of the cases relied upon by learned counsel for the applicant are distinguishable to the facts of instant case.
' Needless to mention here that the observations made hereinabove are tentative in nature and would not influence case of either party at trial.