ORDER SHEET
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Date Order
with signature of Judge
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For
hearing
Date of hearing 14.05.2012
Mr. Syed Shahid Mushtaq Advocate for the Applicant.
Mr. Muhammad Iqbal Awan learned AAG.
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Syed Hasan Azhar Rizvi J; By this order I would decide the
bail application filed by the Applicant Barkat Ali.
Brief facts of the case as
incorporated in the FIR are that the present Applicant committed the murder of
son of the complainant in the Bara of co-accused Imam Bux.
Learned Counsel for the Applicant contended that the Applicant
is innocent and has been falsely implicated in the case of due to enmity.
Neither specific overt role has been attributed to the Applicant nor the Applicant has been nominated in the FIR. There is inordinate
delay of 41 hour in registration of the FIR. According to the learned Counsel
for the Applicant possibility of manipulation and deliberation cannot be ruled
out as the present Applicant has been implicated subsequently due to personal
enmity of the complainant with the Applicant. It is urged by the learned
Counsel that Khadim Hussain the brother of deceased left the deceased in
serious condition when he was unconscious in the hands of the Applicant, who
informed his father/complainant, who is also father of the deceased. According
to learned Counsel matter is fixed for prosecution evidence since December,
2011 but the prosecution has failed to produce any single witness before the
Trial Court. He further submitted that according to the prosecution crime was
committed with 30 bore pistol as shells of 30 bore pistol were recovered from
the place of incident whereas recovery of 32 bore pistol has been shown from
the Applicant/accused, which creates doubt. He further contended that alleged
recoveries of SIMs of mobile phones belong to absconding accused Illahi Bux. He
has relied upon PLD 2005 Karachi 621, 2008 SCMR 6, PLD 2004 Karachi 8, 2005
P.Cr.L.J. 1135 and NLR 2011 AC 39.
On
the other hand learned APG Mr. Muhammad Iqbal Awan has vehemently opposed the
grant of bail to the Applicant and submitted that Applicant is fully involved
in commission of murder of the deceased, his name is mentioned in the FIR with
specific role. Applicant/accused was lastly seen with the deceased, deceased
had pointed out in injured condition towards the Applicant and call his name
also.
I
have heard Mr. Syed Shahid Mushtaq Advocate for the Applicant, Mr. Muhammad
Iqbal Awan Learned APG and perused the relevant material available on record
with their assistance.
On tentative assessment of the material available on
record, it is admitted position that the Applicant has been nominated in the
FIR with specific role. Deceased in injured in presence of the Complainant and
Khadim Hussain father and brother of the deceased had pointed his hand towards
Barkat Ali the present Applicant and call his name, then became unconscious.
After funeral of his son the complainant lodged the FIR therefore, delay in
registration of the FIR was fully explained. Pistol of 32 boare was recovered
from the possession of the Applicnat/accused, the same was sent to Ballistic
Experts for test and according to opinion/report of Fire Arms Examiner,
Forensic Division, Sindh, Karachi the presence of gun powder residue in the
barrel of the above mentioned 32 bore Revolver No.36090 in question, it
revealed that fire has been made through it.
Prosecution witnesses in their 161 Cr.P.C. statements
have fully implicated the Applicant. Material available on record prima facie
connects the Applicant in the commission of offence. Learned Counsel for the
Applicant has failed to make out the case of grant of bail and case law cited
by the learned Counsel for the Applicant in my humble opinion are
distinguishable from the facts and circumstances of the present case.
For the reasons discussed above, the instant Bail
Application was dismissed with the direction to the Trial Court to conclude the
trial within a period of three months and at-least examine the complainant and
PW Khadim Hussain within one month from the date of order. Thereafter, the
Applicant can move fresh Bail Application, if so desire.
Observations made hereinabove are of tentative nature
and the trial Court shall not be influenced by any such observation.
J
U D G E