IN THE HIGH COURT OF SINDH BENCH AT SUKKUR

Crl. Bail Application No.S-708 of 2019.

DATE OF HEARING

ORDER WITH SIGNATURE OF JUDGE

1. For orders on O/objection at flag-A.

2. For the hearing of bail application.

Date of hearing 03.02.2020.

Date of order 10.02.2020.

Mr. Achar Khan Gabole Advocate for the applicant.

Mr. Sardar Akber F. Ujjan Advocate for complainant.

Mr. Abdul Rehman Kolachi DPG for State.

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O R D E R

ZULFIQAR ALI SANGI, J; Through instant bail application, applicant Shahnawaz seeks Post-arrest bail in Crime No.36/2019 registered at Police Station, Lakha Road for offence under Sections 302, 324, 337H(ii), PPC. Earlier his bail application was declined by learned Ist Additional Sessions Judge/MCTC, Naushehro Feroze vide order dated 23.11.2019.

2. The brief facts of the prosecution case are that on 12.06.2019 at 1515 hours, the complainant Bashir Ahmed Khaskheli appeared at Police Station, Lakha Road where he got registered FIR of this case with the Police, stating therein that he resides with his brothers and his brother Ghulam Shabir cultivates the land of Fateh Muhammad Mari on harp basis. On 11.06.2019 he along with his brother Ghulam Shabir went to looking after land situated in village Mohammad Laique Khaskheli and were looking after the same where the landlord Fateh Muhammad Mari also came in village Mohammad Laique Mari. The complainant along with his brother Ghulam Shabir were sitting near otaq of Abdul Hameed Khaskheli where his landlord Fateh Muhammad Mari, Abdul Hameed Khaskheli and Azizullah were also sitting, it was about 10:00 a.m. the accused Qalandar Bux and Bashirs armed with repeaters, Mohammad Bux armed with DBBL gun, Panjal, Ghulam Hussain, Shahnawaz and Yameen armed with rifles, Zameer and Allah Dino armed with K.Kov and Karim Bux armed with Pistol came from western side and gave hakal to complainant party by abusing them. The accused Muhammad Bux Mari instigated other accused to commit the murder of the complainant party. On his instigation accused Qalandar Bux Mari made straight fire from his repeater upon the brother of the complainant which hit him and he fell by raising cries. Accused Zameer Mari also made a fire of K.Kovs upon Abdul Hameed who fell down by raising cries while accused Shahnawaz also made a straight fire upon Fateh Muhammad Mari who fell down by raising cries. They also made a straight fire upon complainant who also fell down and raised cries. On cries and gunshot reports the co-villagers came running there, on seeing the accused persons went away by making slogans and also making aerial firing to harass the complainant party. The complainant then saw his brother Ghulam Shabir sustained firearm injuries on his head and the upper side of arms blood was oozing and was died, while blood was oozing from the head of Abdul Hameed. He then conveyed information to the Police and obtained a letter for medical treatment of injured and conducting postmortem of deceased then he went to RHC Mehrabpur, after postmortem and funeral rite he lodged FIR.

3. Learned Counsel for applicant contends that the applicant has falsely been involved in this case by the complainant with ulterior motives; that there is delay of one day in registration of FIR; that allegation against applicant is for causing injury to PW Fateh Muhammad, said injury declared by doctor as Jurh-Ghayar Jaifah-Mutalahimah punishable up to three years which does not fall within the prohibitory clause of section 497 Cr.P.C; that there is contradiction in ocular and medical evidence; that co-accused have been granted bail by the trial court so also by this court. Lastly, he contended that the applicant is behind the bar without any progress in the trial and prays for the grant of bail. He relied upon the cases of Awal Khan and 7 others V. The State through AG-KPK and another (2017 SCMR 538), Wajid Ali V. The State and another (2017 SCMR 116), Muhammad Ramzan V. The State (2017 YLR 964), Malik Muhammad Aslam V. The State and others (2014 SCMR 1349) and Muhammad Boota V. The state and others (2014 SCMR 1335).

4. Conversely, Mr. Abdul Rehman Kolachi learned Deputy Prosecutor General appearing for the State, assisted by Mr. Sardar Akber F. Ujjan, learned counsel for complainant vehemently opposed the bail on the ground that the applicant is nominated in the FIR with specific role of causing firearm injury to PW Fateh Muhammad; that S.149 is also applicable in the case; that all the prosecution witnesses fully supported the case in their statements under section 161 Cr.P.C and lastly they prayed that bail application may be dismissed. They relied upon the cases of Inayat V. The state (2002 SCMR 129) and Wahid V. The State (PLD 2002 SC 62).

5. I have heard arguments of learned Counsel for the parties and perused the material available on record with their able assistance.

6. The role assigned against the present applicant was that he was armed with a rifle and fired upon PW Fateh Muhammad who received firearm injury on his right leg. Police issued latter for treatment to injured Fateh Muhammad which shows only one injury and the mashirnama of inspection of injuries of Fateh Muhammad was also prepared by the police during the investigation which also shows one injury, whereas the medical certificate issued by the doctor shows that Fateh Muhammad received two injuries on his right leg. A most important aspect is that it was alleged against the applicant that he was armed with the rifle but doctor certified the said two injuries of injured Fateh Muhammad as of Gun Shot. The record further showed that from the place of wardat empties of cartridges were also recovered and some of the accused were armed with repeater and guns which they used at the time of the incident. In such a situation recovery of rifle cannot be used against the applicant at the bail stage.

7. It is a well-settled principle of law that deeper appreciation of evidence is not permissible under the law and the material is to be assessed tentatively from the tentative assessment of ocular and medical evidence collected during the investigation, the case against the applicant is one of further inquiry.

8. The question of common intention cannot be decided at the stage of bail and the same is to be decided by the trial court after recording the evidence of prosecution witnesses. Applicant not fired upon deceased nor he repeated the fire upon any of the injured and the injured Fateh Muhammad also received injury on his right leg which is non-vital part of the body, all these facts tentatively suggest that the applicant had not shared his common intention with co-accused who murdered deceased. Further, the injury declared by the doctor in the final medical certificate of injured Fateh Muhammad is Jurh-Ghayar Jaifa-Mutalahimah for which three years punishment is provided and the same does not fall within the prohibitory clause of section 497 Cr.P.C.

9. This court cannot go into the depth of the case which may prejudice the case of either party but had gone through the material available on record tentatively, from the tentative assessment of the material available on record the applicant is made out a case for grant of bail, therefore, this bail application is allowed and applicant is granted bail subject to furnishing his solvent surety in the sum of Rs: 500000/= (Five lacs) to the satisfaction of trial court.

10. Needless to mention here that observations made hereinabove are tentative and the trial Court may not be influenced by the same and decide the case on its own merits as per evidence and the material made available before it.

Bail application stands disposed of.

J U D G E