IN THE HIGH COURT OF SINDH, CIRCUIT COURT
Crl. Bail Appln. No. S- 202 of 2021.
Applicant: Sobdar Khoso, through Mr. Atique Ahmed Soomro, Advocate.
Complainant: Ghulam Qadir, through Mr. Asif Ali Abdul Razzak Soomro, Advocate.
Respondent: The State, through Mr. Aitbar Ali Bullo, Deputy Prosecutor General.
Date of Hearing: 13.09.2021.
Date of Order: 13.09.2021.
O R D E R
Abdul Mobeen Lakho, J: Through this application, applicant Sobdar son of Khan Khoso seeks his admission to post-arrest bail in Crime No.106/2020 registered at Police Station Mehar of District Dadu, for offences punishable under Sections 302, 324, 148, 149, 114, 504 and 337-H (2) P.P.C. Earlier, bail plea of the applicant was declined by learned 1st Additional Sessions Judge, Mehar, vide order dated 14.12.2020.
2. The allegation against present applicant as per F.I.R lodged by complainant Ghulam Qadir Khoso on 06.5.2020 is that he alongwith co-accused Ghulam Hussain and Iqrar fired at Abdullah, the brother of complainant; such fires hit him resulting into his death on the spot. The shot fired by present applicant is said to hit on shoulder of the deceased. The rest of all accused are alleged to have made firing upon complainant party which went ineffective. The accused persons are also alleged made aerial firing while leaving the spot. The motive for the incident as set-out in the F.I.R is previous murderous enmity between the parties.
3. Learned counsel for the applicant mainly contended that, there is delay of thirteen hours in lodging of the F.I.R; that the P.Ws are interested and related and no independent person cited as witness by the prosecution; that there existed enmity between the parties; as such the applicant has falsely been implicated in this case due to previous enmity; that all the accused nominated in F.I.R are members of same family; that applicant has been implicated in this case due to enmity; that there is conflict between medical and ocular evidence; that applicant is old aged person; that no specific injury is assigned to applicant but there are general allegations of making fire against three accused persons including present applicant, as such it would be determined after that who caused the fatal shot to the deceased. He further contended that the applicant is behind bars since 19.10.2020. Lastly, he prayed for grant of bail to the applicant.
4. Conversely, learned Advocate for complainant opposed the grant of bail to the applicant. He argued that the applicant is nominated in F.I.R with specific role of making shot upon deceased with a pistol, as such he is vicariously liable for the alleged murder of an innocent person; that ocular version gets support from the medical evidence as well recovery of empties from place of incident; that the offence with which the applicant stood challaned carries capital punishment, as such it falls within prohibitory clause of Section 497 Cr.P.C.; that after commission of the offence the applicant absconded away, as such, he has lost some of his normal rights of grant of bail and does not deserve any concession. Lastly, learned counsel submitted that the case has commenced and matter is now fixed before trial Court for recording evidence of prosecution witnesses and they are ready to produce their witnesses before learned trial Court for recorded their evidence.
5. Learned Deputy Prosecutor General appearing for the State while adopting the arguments advanced by learned Advocate for complainant also opposed grant of instant application.
6. I have heard the learned counsel for the parties and gone through the available record. Perusal of the F.I.R shows that the applicant has been nominated therein with specific role that he made pistol shot at Abdullah (deceased) a Youngman of 28 years of age, resulting into his death on the spot. There is recovery of empty of 30-bore from place of incident, which supports version of F.I.R with regard to presence of the applicant-accused at place of incident. The medical evidence is also in line with the ocular account. The motive of the alleged incident is also described within the body of FIR. So for the contention of the learned counsel that there is general allegation of making fire against applicant and three other co-accused and that it would be determined at trial that whose shot become fatal to the deceased and in this context suffice to say that it will make no difference that the injury caused by the applicant-accused is fatal or otherwise, but the intention of the accused is there and even otherwise it would amount to deeper appreciation of evidence, which is not permissible at bail stage. Another contention of learned counsel that the applicant is old aged person is concerned; it appears that the learned counsel has not produced any proof in this regard. The incident is said to have taken place on 05.05.2020 and challan of the case was filed on 01.07.2020 in which the present applicant was shown as absconding; however he was arrested later on and sent with supplementary challan on 19.10.2020 meaning thereby that he has remained fugitive from law and the Court. It is well settled law that the fugitive of law loses some of his normal rights of grant of bail and does not deserve any concession. The offence, with which the applicant stand charged, falls within the ambit of prohibitory clause of Section 497 Cr.P.C. It further appears from the record that charge in case has already been framed and trial has commenced, and it is fixed for recording evidence of prosecution witnesses.
7. For the foregoing circumstances prima-facie there appears that sufficient material is collected by the prosecution against the applicant-accused which connects him with commission of the alleged offence, which falls within prohibitory clause of Section 497 Cr.P.C. Accordingly, the instant bail application was dismissed vide short order dated 13.09.2021 and these are the reasons for short order.
8. Needles to mention here that the assertions made hereinabove are tentative in nature and would not influence the trial Court while deciding the case on merits.