ORDER SHEET
IN THE HIGH COURT OF SINDH, CIRCUIT COURT, LARKANA
Cr. Bail Appln. No.S-237 of 2009.
|
Date of hearing |
ORDER WITH SIGNATURE OF HON’BLE JUDGE |
08.06.2009.
For hearing.
Mr. Ashique Illahi Sundrani, advocate for the applicant.
Mr. Altaf Hussain Surahio, advocate for the complainant.
Mr. Naimatullah Bhurgri, State Counsel.
--------------------
Heard Messrs Ashique Illahi Sundrani, advocate for the applicant, Altaf Hussain Surahio, advocate for the complainant, and Naimatullah Bhurgri, State Counsel. The latter has no objection for the grant of bail as, according to him, there was inordinate delay without plausible explanation in reporting the matter to police and ocular evidence is contradicted by medical evidence.
According to the complainant, on 26.2.2008, at 8.30 p.m. on Shikarpur-Village Hajano link road, near government tubewell, complainant’s son Abdul Ghaffar was killed by applicant Hamal and others because they had abducted his (complainant’s) daughter Mst.Shabana about six months back. The incident was allegedly witnessed by complainant Abdul Hameed, his maternal cousin Asif Ali and co-villager Rahim Bux. It is alleged that on that night they had gone to Shikarpur to complain against the conduct of the applicant and his associates to their nekmard Iran Khan and on their way back to their village at about 8.30 p.m. they confronted applicant Hamal and ten others near government tubewell. Out of them, eight, including the applicant, were identified, while three were not previously known to them, but they claimed that they had seen them very clearly on the light of their torches and would be able to identify them. It is alleged that applicant Hamal, armed with shotgun, fired pointblank on the abdomen of the deceased and his companion absconding accused Attaullah fired pointblank on his left temporal. It is further alleged that all the other accused gave blows to the complainant with the butts of their shotguns. It is further alleged that due to fear the complainant and his two companions ran away to their village and returned back alongwith their co-villagers to the place of incident, but failed to find out the dead body and, therefore, they went to civil hospital in search of the dead body. In the morning they again went to the place of incident and found the dead body of the deceased lying there and thereafter they went to Police Station Lakhi Gate situated at the distance of only 2/3 kilometers from the place of incident and reported the matter to police on 27.2.2008, at 0900 hours.
Learned Counsel for the applicant contends that the applicant had no motive to kill the deceased, as the complainant party were not involved in abducting or enticing their lady, but on the contrary the applicant party had allegedly abducted complainant’s daughter, though, according to him, she had married with one Mansab Ali son of Jan Muhammad Hajano of her freewill.
According to him, the complainant party in order to take revenge of their lady having married against their wish had been constantly making attacks upon them, for which they had filed cases against them.
Referring to the postmortem examination report, the learned Counsel argued that there was glaring contradiction between medical evidence and the ocular evidence inasmuch as according to the ocular evidence the applicant had fired pointblank on the abdomen of the deceased, whereas according to the postmortem examination report there was wound of exit on the abdomen, of which the corresponding wound of entry was on the back chest of the deceased. Referring to the medical certificate of the complainant, learned Counsel for the applicant contends that according to the ocular evidence all the accused had given blows with the butts of their guns to the complainant, whereas the doctor could find only one abraded swelling on his nose. He has relied upon the precedents reported in 1994 P.Cr.L.J. 541 (Karachi), 2000 P.Cr.L.J. 2053 (Karachi), 2002 P.Cr.L.J. 791 (Karachi) and 2002 P.Cr.L.J. 1062 (Peshawar).
The learned Counsel for the complainant has opposed bail on the ground that name of the applicant appears in the F.I.R, and the delay is properly explained. According to him, the ocular evidence was supported by medical evidence and deeper appreciation of evidence was not permissible at bail stage. In support of his contentions, he has relied upon Liaquat Ali versus The State, 2005 P.S.C. 61 (Supreme Court of Pakistan), 1989 SCMR 239, 2006 P.Cr.L.J. 184 (Peshawar), 1999 P.Cr.L.J. 898 (Peshawar), 1999 P.Cr.L.J. 1105 (Lahore), 2001 P.Cr.L.J. 134 (Lahore), 2009 P.Cr.L.J. 472 (Karachi), 2009 P.Cr.L.J. 540 (Karachi) and 2009 M.L.D. 384 (Peshawar).
The conduct of the complainant, in whose presence his son was done to death, in not reporting the matter to police immediately and going to their village first and coming back to the place of incident, not finding the dead body at the place of incident and then searching for it in the hospitals and then finding the dead body at the same place, militates against the reasonableness of grounds put forward by the prosecution for believing the applicant guilty of the offence, particularly when the ocular evidence stands controverted by the medical evidence. The precedents cited by the learned Counsel for the complainant has no relevance to the facts and circumstances of the present case. In such circumstances, the case of the applicant is fully covered by subsection (2) of Section 497, Cr.P.C and he is entitled to bail. He cannot be refused bail on the ground of his abscondence, particularly when he is not shown to have been declared proclaimed offender by the learned trial Court and no proceedings under Section 87, 88, Cr.P.C are shown to have taken against him. In such circumstances, the applicant is directed to be released on bail on giving one surety in the sum of Rs.400,000/- and personal bond in the like amount to the trial Court.
JUDGE