Cr. Bail Application No.27/2009
ORDER
Date of hearing : 02.02.2009.
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Applicant
Complainant |
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through Mr. Syed Maroof Ali, Advocate.
through Mr. Lal Hussain Shah, Advocate
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Respondent |
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The State through Mr. Saleem Akhtar Addl. Prosecutor General Sindh.
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Syed Mahmood Alam, J:- This bail application is directed against the order dated 23.12.2008, passed by learned 1st Additional Sessions Judge, Karachi (West) in Crime No344/2005, under section 302/34 P.P.C., registered at P.S. S.I.T.E., Karachi, whereby the second bail application of the applicant was dismissed.
Precisely, the facts of the prosecution case are that one Muhammad Durvesh recorded his statement under section 154 Cr.P.C. at Abbasi Shaheed Hospital and stated therein that his younger brother Muhammad Zubair [the deceased] was running a shop of “Rent a Motorcycle.” That 5/6 days earlier, accused Javed Iqbal, Iqbal Hussain and Muhammad Rafique, all real brothers beaten his younger brother Muhammad Zubair due to enmity they also fired shots in the air. That on 18.10.2005, while his brother was present in his shop and complainant was in the house, one Umar Sadiq came to his house at 9.30 p.m. and informed him that above mentioned accused persons have injured Muhammad Zubair in presence of Umar Sadiq, Tariq Ameen, and Muhammad Sadiq @ Bahadur and further informed that Javed Iqbal, the applicant had fired directly upon deceased. The complainant reached at the spot and took injured to Abbasi Shaheed Hospital, but the deceased succumbed to his injuries. As a result, a case under section 302/34 P.P.C. was registered at P.S. S.I.T.E., at 0130 hours, on the same night. Subsequently, the applicant was arrested on the same date, while the other co-accused could not be arrested and after investigation, the challan had been submitted and proceedings under section 87/88 Cr.P.C. were completed and charge was framed.
Earlier, after the examination of 05 prosecution witnesses, the bail application was rejected by the trial Court, therefore, the applicant filed bail application bearing No.448/2008, in this Court and on 26.8.2008, the same was disposed of with directions to conclude the case within three months.
Mr. S. Maroof Ali, learned counsel for the applicant has contended that after the above Order only two more prosecution witnesses have been examined but in presence of specific directions of this Court, the case has not been concluded as yet while the applicant is behind bars since 19.10.2005, and in such circumstances, the applicant is entitled to bail and has relied upon the cases of SHAHBAZ ALI V/S THE STATE reported in 2008 MLD page 178 Kar., AASHIQ @ MUHAMMAD ASHRAF reported in NLR 1995 (Cr) Page 10 (S.C) and GUL BEG alias NANGI V/S THE STATE reported in 2005 P.Cr.L.J. page 147 (D.B).
He further contended that there are contradictions between medical and the ocular evidence. As per M.L.R. the deceased received the bullet injury on his left leg, while the prosecution witnesses stated on the right side and further per M.L.O., the injured brought at hospital at 9.15 p.m., while the complainant, Fazal Hussain and PW-Sadiq stated that it was 9.40 p.m. and has relied upon the case of ZULFIQAR V/S THE STATE reported in 2002 P.Cr.L.J. 791 (D.B).
He has further contended that as per prosecution case the recovery of arms/crime weapon was shown on 20.10.2005, in presence of the police officials but independent witnesses of the locality were not made as mashirs, hence the same was the violation of section 103 Cr.P.C. and has relied upon the case of SULEMAN V/S THE STATE reported in PLD 1981 Karachi page 195.
He has further contended that as per mashirnama of arrest, the accused was arrested on 19.10.2005 at 2030 hours, on the identification of the complainant, near Toheedi Masjid, Pathan Colony, while as per Entry made at Madadgar-I SITE-I, bearing No.318 at 9.35 p.m. on 10.10.2005, the applicant was already arrested. He has further contended that two eye witnesses were placed in the F.I.R. namely, Muhammad Sadiq and Tariq Ameen. The P.W. Tariq Ameen had been given up while Muhammad Sadiq had been examined in Court and P.W. Muhammad Sadiq did not implicate the applicant, he deposed that he simply informed the complainant about the incident at his house and subsequently, took the injured to hospital. He has further contended that P.W. Abdul Salam was said to have been produced the motorcycle of the accused persons after six days of the incident while it was the prosecution case that the accused persons came on motorcycle and had left the motorcycle at the place of incident and when police arrived on the spot, prepared the memo of incidence, but nothing had been mentioned about the motorcycle. He further argued that there were glaring contradictions in statements of the prosecution witnesses, hence in such circumstances the applicant is entitled to bail.
Mr. Saleem Akhtar, learned Addl.P.G. has contended that the grounds raised by the learned counsel for the applicant regarding the contradictions between medical evidence with the ocular evidence, the recovery of motorcycle and arrest of the applicant by 15, were earlier argued but bail application of the applicant was dismissed. The eye witness Umar Sadiq has implicated the applicant and has further stated that the delay in proceeding the case after framing of charge has not been attributed towards the prosecution as the prosecution witnesses were always available in Court, moreover after the directions of this Court 02 more witnesses were examined and the other prosecution witnesses were also available but on account of one reason to other the witnesses could not be examined due to absence of the learned counsel for the applicant, hence ground of hardship or fatal delay was not available to applicant, therefore, the applicant was not entitled to bail at this stage.
Mr. Lal Hussain Shah, learned counsel for the complainant has vehemently opposed the bail application and has contended that the delay in the prosecution never been attributed towards the prosecution as the PWs used to present in Court, but defence counsel had sought adjournments and in support of his arguments have placed the certified copy of the diaries.
He has further contended that there is no contradiction between the medical and ocular evidence. The eye witnesses P.W. Fazal Hussain and Muhammad Shafi have been examined besides Muhammad Sadiq and their statements under section 164 Cr.P.C. were also recorded, the other eye witnesses have been given up as the Court has to see the quality of the witnesses and not the quantity of the witnesses. He has further contended that regarding recovery of arms one mashir Zahir Shah has been examined, therefore, the other P.W. has been given up. He has further contended that regarding the recovery of motorcycle P.W. Abdul Salam has been examined, therefore, the other witness Ahmed Din has been given up and Dr. Muhammad Saleem has been examined and produced the medical record, thereafter, other prosecution witnesses namely, Muhammad Ziauddin, Tariq Ameen, Muhammad Irshad, Judicial Magistrate, P.C. Javed, and P.W. Akbar and Shahzad have been given up as the material witnesses on every point have already been examined except the Investigating Officer.
At this juncture, learned defence counsel has pointed out that SI Abdul Sattar, and Crime FSL Incharge, have to be examined.
Mr. Lal Hussain Shah further contended that P.Ws Fazal Hussain, Muhammad Sadiq and Muhammad Shafi have deposed that the applicant made fire directly on the deceased. He has relied upon the case of MUHAMMAD NAWAZ V/S THE STATE reported in 2002 SCMR page 1381, on the point that the case was at final stage and in presence of the direct evidence the bail application was dismissed.
Heard the learned counsel for the applicant, complainant, the learned Addl. P.G., perused the record and the judgements cited by the respective counsel.
After dismissal of earlier bail application, the trial Court almost has concluded the case, therefore, the case of Shahbaz Ali (supra) is not applicable in these circumstances.
The ground of the hardship and fatal delay is not made out as the case almost has been concluded. The other points raised by the learned counsel require deeper appreciation, the same may be urged in the trial Court at the time of final arguments. In the instant case at lease three eyewitnesses have directly involved the applicant, hence prima-facie case is made out. The impugned order is well reasoned and needs no interference.
In view of the above facts and circumstances, the bail application has no merits, hence the same is dismissed.
JUDGE