ZULFIQAR ALI SANGI, J. Through this bail application, applicant Ghulam Hussain son of Ali Muhammad seeks his past-arrest bail in Crime No.05 of 2020, registered at Police Station Guloo Sial, District Khairpur, for an offence punishable under sections 302, 34, P.P.C. Earlier his bail application was declined by learned Additional Sessions Judge-IV, Khairpur vide order dated 06.05.2021, hence this application.
2. The allegation against the present applicant/accused is that he made straight fires from his Kalashnikov at the right arm as well as back of left shoulder of deceased other accused also fired upon the deceased to which he succumbed injuries and died at the spot.
3. Learned Counsel for the Applicant, at the very outset, submits that applicant/accused is quite innocent and has been falsely implicated by the Complainant due to matrimonial dispute, which fact has also admitted in the contents of FIR; that the role against the present applicant is that he caused fire shot at non-vital part of deceased hence the applicability of the sections requires evidence; that since registration of FIR neither any progress has been shown by learned trial Court nor till today any witness has been examined; that present applicant contracted freewill marriage with the daughter of close relative of Complainant for which complainant party remained annoyed and were issuing threats for dire consequences hence false implication cannot be ruled out; that in order to settle account of grudge and enmity, complainant has converted family litigations into criminal; that there is no possibility of abscondance of accused; besides tempering with the prosecution evidence; that as per medical evidence there is contradiction in respect of the injuries which too makes the case one of further inquiry; that the applicant is behind the bar since the date of his arrest i.e. 26.04.2020, hence his further incarceration is not required. In support of his contention, he has placed reliance upon the case laws reported in Iqbal Ahmed and others (2006 MLD 1930), Dina! v. The State (2017 PCr.LJ Note 122) and Abdul Rehman alias Peero v. The State (2017 YLR Note 188). Lastly, he prayed that applicant may be admitted to bail.
4. Conversely, learned Counsel representing the Complainant vehemently opposed the grant of bail to the applicant on the ground that the applicant is nominated in FIR with specific role of causing fire shots to the deceased Naseer Jodh to which he succumbed injuries and died at the spot. He next contended that since role of causing firearm injuries to the deceased is clearly mentioned in the contents of FIR; besides offence falls within prohibitory clause, therefore, he does not deserve concession of post-arrest bail and the bail application may be dismissed.
5. Learned D.P.G., while adopting the arguments of learned Counsel for the Complainant, also opposed the grant of bail on the ground that active role of causing firearm injuries on the person of deceased has been attributed to the present applicant/accused owing to which an innocent person lost his life at spot; that complainant as well as PWs in their statements have specifically nominated him in the commission of offence and ocular account is supported by postmortem report issued by doctor hence does not deserve to be bailed out.
6. I have heard learned Counsel for the Applicant as well as learned D.P.G. and have gone through the material available 'on record with their able assistance.
7. Record reflects that present applicant is nominated in the FIR with specific role that while he armed with Kalashnikov made successive fire shots on the person of deceased Naseer who succumbed to the injuries at the spot. Other witnesses in their statements recorded under section 161, Cr.P.C., have also implicated the applicant with same role in the commission of offence. Ocular evidence is corroborated by postmortem report of the deceased Naseer which indicated that the death had occurred due to discharge of firearm, which was sufficient to cause death in ordinary course of life. Honourable Supreme Court in case of Ghani Khan v. The State and another (2020 SCMR 694) has held as under:-
2. After hearing the learned counsel for the petitioner, learned counsel appearing on, behalf of the State and perusal of available record, it has been observed by us that the petitioner is named in the FIR with specific role of firing at the complainant Hazrat Ullah, which as per the statement of the complainant, hit him on his right thigh and right side of his chest. The said allegation is prima facie supported by the medical evidence. The offence alleged against him falls within the prohibitory clause of section 497(2) Code of Criminal Procedure. In these circumstances he is not entitled to the concession of bail.
8. Contentions of learned counsel that as per FIR applicant fired upon deceased which hit him on the non-vital part of body and as per postmortem report no any injury as attributed appears; however, at this stage without recording the evidence of the doctor it cannot be opined and the same is deeper appreciation of evidence which is not permissible at bail stage. Reliance is placed on the cases of Mumtaz v. The State (2012 SCMR 556), Mst. Irshad Begum v. Muhammad Afzal and others (1985 SCMR 1691). Honourable Supreme Court in the case of Sohail Waqar alias Sohaila v. The State and others (2017 SCMR 325) has held as under,-
3. After hearing the learned counsel for the petitioner and learned Law Officer at some length and perusing the available record with their assistance, we have noted that petitioner has been specifically nominated in the FIR and specific role of firing at Mubashar Bhatti (deceased) has been attributed to him. The police have found him guilty during the investigation. He remained fugitive from law for a considerable period of time. So far as the conflict between the ocular account and the medical evidence, pointed out by the learned counsel for the petitioner is concerned, suffice it to observe, deeper appreciation of evidence is not desirable at the bail stage. It is for the learned trial Court to determine, after recording evidence pro and contra, the guilt or otherwise of the petitioner. The offence alleged falls within the prohibitory clause of section 497, Code of Criminal Procedure, which disentitles the petitioner for grant of bail.
9. It is settled principal of law that deeper appreciation of evidence is not permissible while deciding the bail plea of the accused and material collected during investigation is to be assessed tentatively. From the tentative assessment of material available on the record in shape of FIR, statements of the witnesses recorded under section 161, Cr.P.C. including medical evidence, prima facie, there appears sufficient evidence/material against the applicant which connect him with the commission of offence in which one innocent person lost his lite, therefore, the applicant is not entitled for the benefit of bail. Resultantly the bail application of the applicant is dismissed.
10. The observations made herein-above are tentative in nature and shall not prejudice the right of either party at the trial.
11. The bail application is disposed of in the above terms.