1. ' MUHAMMAD IQBAL MAHAR, J.---Through instant bail application, the applicant/accused has challenged the order dated 13.1.2016 passed by learned IInd Additional Sessions Judge Kandhkot whereby his bail application has been dismissed in Crime No,142 of 2015 of PS C-Section Kandhkot for offence punishable under sections 302, 337-H(2), 148 & 149, P.P.C.
2. ' The facts of the case in nutshell are that on 23.5.2015 complainant Mst. Jathi Khatoon along with her son Wali Mohammad, nephew Qadir Bux and husband Lashari alias Mohammad proceeded towards Kandhkot with some work and when at about 8r15 a.m. Reached near Grid Station Kandhkot; fifteen accused persons duly armed alighted from a Datsun. Out of them complainant party identified 12 accused including the present applicant/accused having pistol in his hand. On their arrival the accused persons challenged Lashari alias Mohammad that he would be killed due to previous murderous enmity, saying so accused Jehangir, Sakhwan, Qabil, Birjoo (applicant), Nipoo alias Naboo and Haji Khan allegedly fired from their pistols upon Lashari alias Mohammad, which hit him and he fell down by raising cries. Thereafter all the accused persons made aerial firing with their weapons and went away on the same Datsun. Complainant went over her husband and found him sustaining firearm injuries on his backside. He was bleeding and was dead.
3. Complainant took the dead body to Taluka Hospital and after postmortem and funeral ceremony went to P.S.; where she lodged the FIR to the above effect.
4. ' Previously, after rejection of their bail application by learned trial Court, the applicant/accused and co-accused Mohammad Ashraf had moved Cr. Bail Application No,S-347/2015 before this Court but later on bail plea of the applicant was not pressed, therefore, said bail application was dismissed as not pressed. Thereafter the applicant/accused moved fresh basil application before learned trial Court which has also been dismissed therefore, he has approached this Court.
5. ' Learned counsel for the applicant contended that after dismissal of earlier bail application as not pressed, the applicant repeated his bail application before learned trial Court mainly on the ground that in fact the name of present applicant is Gulzar son of Ghularn Nabi but he has been substituted on the place of Birjoo son of Shango, in support of his submission he has placed on record photostat copy of affidavit of the mother of applicant stating therein that the applicant is Gulzar Ahmed son of Ghulam Nabi but the learned trial Court has failed to consider or properly assess the said ground. Besides, learned counsel also urged that there is general allegation against five accused persons including the present applicant of causing firearm injuries to the deceased and the fatal injury is not specifically attributed to the applicant/accused. The alleged pistol has been foisted upon the present applicant. On all these scores, learned counsel asserted that prosecution case against the present applicant calls for further inquiry and he is entitled to the concession of bail. Learned counsel has relied upon the cases reported in PLD 1996 SC 241 and 1992 PCr.LJ 542.
6. ' Conversely, learned A.P.G opposed the grant of bail and submitted that applicant/accused is nominated in the FIR with specific role of firing at deceased and that the delay in judgment of FIR is explained by the complainant. He further submitted that the recovery of pistol from possession of applicant also connect him with the commission of offence and his earlier bail application was dismissed as not pressed therefore, according to him the applicant is not entitled to grant of bail.
7. I have considered the arguments advanced by learned counsel for the applicant, A.P.G. And perused the record minutely. It appears that earlier bail application of applicant was dismissed as not pressed before this Court and the applicant repeated his bail application before learned trial Court on the ground that the applicant is Gulzar Ahmed son of Ghulam Nabi but he has been substituted on the place of Birjoo. In support of his contention he has placed on record Photostat copy of affidavit sworn by mother of applicant. Record reveals that, the applicant has neither taken this plea before the Investigating Agency, nor in his first bail application before trial Court as well as before this Court and furthermore, the complainant present in person stated that the applicant accused is real culprit. However, it will be for the trial Court to decide this issue at the time of trial.
8. The record further reveals that the name of applicant appears in FIR with specific role of firing at deceased along with co-accused. The version of complainant is supported by PWs in their 161, Cr.P.C. Statements and delay in FIR prima facie appears to be explained by the complainant in FIR that after post mortem and funeral ceremony of deceased, she went at Police Station and lodged the FIR. The medical evidence and recovery of pistol from possession of the applicant also corroborates the version of FIR. The offence is punishable with death or imprisonment for life, hence falls within prohibitory clause of section 497, Cr.P.C., therefore instant bail application being devoid of merits is hereby dismissed. However learned trial Court is directed to examine at-least eyewitnesses of the case preferably within period of three months after receipt of this order and thereafter the applicant would be at liberty to move fresh basil application before the trial Court.
9. ' The case law relied upon by learned counsel for the applicant is distinguishable on facts.
10. ' Needless, to mention that the observations made here in above are tentative in nature, thus shall not prejudice the case of either party in trial. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.