' By this Order, I propose to dispose of Criminal Bail Application No,536 of 2000, tiled on behalf of the two applicants, namely Faizoo alias Faiz Muhammad and Ghousoo alias Ghous Bux, arising out of Crime F.I.R. No,6199, Police Station Rustam for an offence under sections 337H(2), 324, 457, 460 and 34, P.P.C. The bail plea of the applicants was dismissed by .The learned Vth Additional Sessions Judge, Shikarpur vide order, dated 6-11-2000.
2. The prosecution story, as unfolded in the F.I.R., is that the complainant is a "Hari" by profession. He is owner of the cattle comprising Buffaloes. He used to live alongwith his son Shahzado, relatives Mour, Hakim and Dur Muhammad, in his house. On the eventful night, the complainant party, after taking meals, went to bed. It is said that at about 3-00 a.m. (night), they woke up on barking of dogs on which they got up and identified 1. Faizoo alias Faiz Muhammad,
2. Ghous Bux alias Ghousoo,
3. Ghularn Muhammad and two unknown persons in the light of the bulbs. They were duly armed with guns, excepting the unidentified persons, who were disclosed to be armed with lathies, standing in the cattle-shed. It is said that the complainant party and the culprits grappled with each other and, in the meanwhile, accused Ghous Bux alias Ghaousoo fired from his gun hitting Shahzado as a consequence whereof he fell down. Accused Faizoo alias Faiz Muhammad also fired from his gun at Mour and he 'also fell down by raising cries. The culprits, who were armed with lathies, gave lathi blows to Mour, hitting him on his back and other parts of the body. On commotion and firing, several persons of the village came running and the culprits, while having a look on them, decamped towards south by making aimless firing. The F.I.R. Further shows that they saw Shahzado, who sustained injuries on his forehead and ears, he was bleeding and was dead.
Mour had sustained injury on his belly and was lying injured. It is said that the injured and the deceased both were removed to the Hospital for first aid and postmortem respectively and, thereafter, went to the Police Station where he recorded the F.I.R., as above. After usual investigation, the case was sent up to stand trial in the Court of learned Vth Additional Sessions Judge, Shikarpur.
3. I have heard learned counsel for the respective parties and perused the record. Mr. Yasin Khan E.
Babar, learned counsel for the applicants, has argued that the incident had taken place during the dark hours of night and identification in the light of bulbs is dubious and doubtful. He has also argued that it is a case of inconsistency between the ocular version and medical evidence, as according to him, the nature and number of injuries does not commensrurate with the medical evidence inasmuch as besides gun shot injuries, the deceased has sustained injuries by means of hard blunt substance for which there is no explanation in the F.LR. In this background, the High Courts and Supreme Court have always been granting bails.
4. The learned counsel for the applicants has referred to the cases of Muhammad Ayyub and others v. The State (1987 SCM R 1906), Muhammad Hand v. Manzoor and others (1982 SCM R 153) Jan Muhammad alias Janoo v. The State (1994 PCr.LJ 541), Muhammad Ashraf v. The State (1999 PCr.LJ 1464), Bashir Ahmed alias Mannu v. The State (1996 SCM R 308) and an unreported decision of this Court in Criminal Bail Application No,1132/86, and in the light of the cited judgments, he has prayed for grant of bail.
5. Mr. Altaf Hussain Surahio, advocate appearing on behalf of the State, has opposed the grant of bail on the grounds that F.I.R has been promptly lodged, which is without any loss of time and the names of the applicants appear in the F.I.R. According to him, specific part of causing injuries has been assigned to both the applicants. As per Mashirnama of Wardat, seven empties of 12 bore cartridges were secured coupled with recoveiy of guns from both the applicants, Mr. Surahio further argued that it is a heinous offence inasmuch as the applicants, alongwith other co- accused, broke, entered the house while committing house breaking and thereafter committed the murder of one person and caused injury to another by means of fire-arm such as guns. He also cited the case of Zahid Shah v. The State (2001 PCr.LJ 134), Dildar Baig v. The State (1998 SCM R 358) and Ranjho v. The State (2000 PCr.LJ 674) and, in the light of the arguments made and citations referred, he requested for rejection of the bail.
6. I have given my anxious thought to the arguments advanced by the counsel for the respective parties and perused the record. Admittedly, the F.I.R. Has been promptly lodged as the incident has taken place at 3-00 a.m. (night) whereas the F.I.R. Was registered by 7-00 a.m. When the distance between the place of occurrence and the Police Station is about 4/5 kilometers, which is without any loss of time. The names of the applicants appear in the F.I.R. Alongwith specific part assigned to them. They were properly identified in the light of the electric bulbs. Besides this, seven empties of .12 bore cartridges were secured from the place of Wardat and two guns, one from each of the applicants were also recovered. The offence is punishable with capital charge. No background of enmity has been alleged in the F.I.R and as such false implication of the applicants is out of question. Both the applicants were alleged to be armed with guns and were said to have fired on the persons, namely Shahzado and Mour, and as a consequence of the said firing, Shahzado had died whereas Mour sustained injuries by means of fire-arms. The arguments of the learned counsel for the applicants that besides gun shot injuries, deceased Shahzado had also sustained injuries by means of hard blunt substance for which there is no explanation in the F.I.R., has no force for the reasons that it was a case of grappling/free fight between the complainant and the accused and presence of such kind of superficial injuries appears to be natural. In the circumstances, it cannot be termed as a case of conflict between ocular version and the medical evidence, but, on the contrary, the ocular version of the eye witnesses is corroborated by the medical evidence.
7. Reference is made to the case of Abdul Hayee and others v. The State, reported in 1996 SCM R
555. It would be advantageous to reproduce the relevant paragraph as under: "After hearing the learned counsel and reading the record, we have not been persuaded to allow bail to the petitioners on the alleged ground of conflict in the ocular account with the medical evidence. After recording evidence, it is for the trial Court to give weight to the prosecution evidence in its own wisdom. Time and again, it has been said by this Court that at bail stage, evidence of the parties could not be assessed/tested in depth. The purpose is to avoid expression of opinion one way or the other on merits of the case. The petitioners have been mentioned in the F.I.R with clear roles in commission of the crime. These allegations would surely be sufficient on face of them to demonstrate that this was not a case of further inquiry within the meaning of section 497, Cr.P.C. For admission of the petitioners to bail. They are the accused in a case of capital charge. The learned High Court had, therefore, cancelled the bail which was allowed to the petitioners by the trial Court. It is, undoubtedly, within the.Discretion of the competent criminal Courts to grant bail to the accused even in appropriate murder cases. They are, however, under heavy duty to exercise their discretion fairly, justly and properly which in any case, should be based on good grounds to meet the ends of justice. There is, therefore, no substance in this petition which is dismissed by refusing leave to appeal."
8. The law referred by the learned counsel for the applicants has no bearing on the facts and circumstances of the case. Consequently, the bail application is dismissed.
9. The observations made herein above are confined only to this bail application. They are to be considered as tentative in nature by the learned trial Judge insofar as trial of the main case is concerned. The learned trial Judge will decide the main case in accordance with law, uninfluenced by whatever is observed herein above.