IN
THE HIGH COURT OF SINDH BENCH AT SUKKUR
Crl. Bail Application No.S-622 of
2023
Applicant: Ali
Muhammad alias Ali Bozdar through Mr. ZubairAhmed Rajput, Advocate.
Complainant: Ghulam
Yaseen, through Mr. Ubedullah K. Ghoto,
Advocate.
State: Through
Mr. Aftab Ahmed Shar, Add.P.G
Date of hearing: 16-10-2023 and 23.10.2023
Date of decision: 23.10.2023
O
R D E R
Zulfiqar Ali Sangi, J: Through this bail application, the
applicant/accusedAli Muhammad alias Ali, seeks pre-arrest bail in Crime No.07/2022,
registered at police stationJarwar, for offences
under section 302, 114, 504, 34 PPC. Earlier on approach his bail application
was declined by LearnedAdditional Session Judge-I, Mirpur Mathelovide order dated
20-07-2023.
2. The facts of the case are that on 03-03-2022 at about 2300
hours complainant Ghulam Yaseen Bozdar lodged FIR at Police Station, Jarwar stating therein that the dispute arose between him
and accused Ali Muhammad alias Ali Bozdar over matrimonial affairs to which
accused annoyed upon him and asked him to teach lesson.On 02.03.2022 in evening
time, complainantalongwith his sons Muneer Ahmed, Sahto and Nisar Ahmed Bozdar went
to the land of Chakar Khan Bozdar tolook after the
wheat crop, when they reached at Chakar Minor, it was about 1630 hours there
appeared accused Ali Muhammad alias Ali
(present applicant),Shamsuddin alias Shaman and two unknown persons came
there. After stopping the motorcycle accused Ali Muhammad alias Ali abused and
said today they will not spare them, the son of complainant, namely, Muneer
Ahmed asked accused be gentle man and dont abuse themselves as they have
resolved such matrimonial dispute on which accused Shamsuddin alias Shaman
instigated others to commit murder of complainant party. On his instigation accused
Ali Muhammad alias Ali made straight fire with his pistol with intention to
commit murder of Muneer Ahmed which hit him on right shoulder,
unidentified accused persons made straight fire with his pistol in order to
commit murder of Muneer Ahmed which hit him on elbow of left arm; however, another
unidentified person made straight fire upon son of complainant Muneer Ahmed in
order to murder him but such fire not hit to Muneer Ahmed then they raised
cries and gave names of Almighty Allah and Rasool (PBUH) to accused persons,
then all accused persons went away on the motorcycles, then complainant saw his
son Muneer Ahmed was seriously injured and was trembling, then complainant
arranged the conveyance and brought his son and going towards Taluka Hospital
Mirpur Mathelo on car but son of complainant was died. Complainant then
received letter from P.S for postmortem and after funeral rite the complainant
appeared at Police Station and lodged FIR against accused persons.
3. Learned Counsel for the Applicant, at the very outset, submits
that the applicant is innocent and was involved by the complainant with malafide
intentions and ulterior motives; that there is delay of more than one day in
registration of FIR for which no plausible explanation has been furnished; that
prior to registration of FIR one departure entry No.20 dated 02.03.2022 at 1640
hours was kept by ASI Sher Khan Bozdar in daily Roznamcha Register of Police Station, Jarwar
within 10 minutes of the incident wherein the complainant Ghulam Yaeen has
informed the police about the incident without disclosing the name of any
accused and after more than one day nominated the present applicant and his old age and infirm father which is
sufficient to prove the malafide of the complainant
and the false implication of the present applicant in this case cannot be ruled
out; that there is inconsistency between the ocular, circumstantial and medical
evidence and the contentions of FIR, postmortem report and mashirnama of place
of incident absolutely falsify the prosecution story and creating serious doubt
in the presence of complainant party at the time of incident hence, this is
unseen incident; that co-accused Shamsuddin @ Shaman was 68 years old and
infirm how he put pistol in his hands and made fire; that during pendency of
bail Shamsuddin @ Shamanwas died which itself is sufficient to put the serious dent upon
the prosecution version; that Inspector Ghulam Ali who subsequently appointed as investigation
officer in his opinion has stated that murder of deceased Muneer Ahmed Bozdar
has been committed by Faiz Muhammad son of SuhinoBozdar
with his accomplices namely Ghulam Mustafa @ Mustoo
and two unknown culprits due to frustration over alleged illicit terms of
deceased Muneer Ahmed with his wife Mst. Bakhtawar @ Hajani; that the
investigation officer found the applicant as innocent and as per his opinion
applicant was not available at the time of incident at the place of wardat. Lastly,
he submits that the case of application fall within in the ambit of further
inquiry and the applicant is entitled for the confirmation of bail. Learned
counsel relied upon the cases of Muhammad Nawaz v. The State (SBLR 2007 Sindh
1484), Jamaluddin and another v. The State (2023 SCMR 1243), SharafFaridi v. Federation of Pakistan (PLD 1989 Karachi
404), Khair Muhammad and another v. The State through
P.G. Punjab and another (2021 SCMR 130),Mehmood Khan
v. The State (2007 P.Cr.L.J 752), ShahzadaQaiserArfat
alias Qaiser v. The State and another (PLD 2021 SC
708), Muhammad Saeed Mehdi v. The State and 2 others (2002 SCMR 282), Khalil Ahmed Soomro and others v.
The state (PLD 2017 SC 730), Tariq Bashir and 5 others v. The State (PLD 1995
SC 34), Zaigham Ashraf v.
The State and others (2016 SCMR 18), MullaDur
Muhammad v. The State (1990 P.Cr.L.J 1741), Jaffer v. The State (1990 P.Cr.L.J
1321), Asmatullah and another v. The State and
another (2004 P.Cr.L.J 2023), Ghulam haider v. The State (1970 P.Cr.L.J
640), Sher Muhammad and 2 others v. The State and 4
others (1994 SCMR 549), Ehsan Ullah
v. The State (2012 SCMR 1137) and Gyasuddinv. The
State (2006 S.L.J 179).
4. Learned DPGand counsel for the complainant while opposing the
bail application submits that the applicant is nominated in the FIR with a
specific role of causing firearm injury to the deceased; that the delay in
registration of FIR was properly explained by the complainant; that the
allegation against the applicant has support of medical evidence; that the bail
application is to be decided tentatively and deeper appreciation of evidence is
not permissible; that no malafides are alleged
against the complainant party; that plea of alibi is not to be considered at
bail stage; that the incident is of day time and the parties are known to each
other therefore there is no chance of mistaken identity;that
Ipsidixit opinion on investigation officer cannot be
accepted to exonerated the applicant from the commission of offence; that there
appear sufficient material available on record which connect the applicant with
the commission of offence, hence, the applicant is not entitled for concession
of bail. They relied upon the cases of Zulfiqar Ali and another v. The State
(2020 MLD 1404), Allah Bux and 2 others v. The State
(2019 P.Cr.L.J 82), Abid
Hussain v. Tassawar Hussain and another (2021 SCMR
518), Hamid Ali Tanoli v.
The State (2022 YLR 602), Mst. Qudrat
Bibi v. Muhammad Iqbal and another (2003 SCMR 68), Abu
Bakar Siddique v. The State and others (2021 SCMR 5), Rana Muhammad Arshad v.
Muhammad Rafique and another (PLD 2009 SC 427), Allah
DewayoShahaniv. The State
through Prosecutor General, Sindh (2023 SCMR 1724) and Amir Faraz
v. The State (2023 SCMR 308).
5. I have heard learned Counsel for the parties and have gone
through the material available on record with their able assistance.
6. There is no denial of the proposition that the bail
application is to be decided attentively on the basis of material available on
the record and deeper appreciation of evidence is not permissible under the
law.Bilal Khan v. The State (2020 SCMR 937)Socha Gul v. The State (2015 SCMR 1077),Munir
Ahmed v. The State (2014 SCMR 1669), Saleh Muhammad v. The State (PLD 1986 SC
211) and The State v. Zubair and 4 others (PLD 1986
SC 173).
7. Declaring the accused as innocent and keeping his
name at Colum 2 of the challan alone is not a ground for grant of bail in
absence of a strong defence evidence which on tentative assessment found to be
sufficient to bring the case of accused in the ambit of further inquiry. Further
the Ipsidixit opinion of the investigation officer
cannot be accepted to exonerate the accused from the commission of offence. Mst. Qudrat Bibi
v. Muhammad Iqbal and another (2003 SCMR 68),Basharat
Ali v. The State (2022 SCMR 267), Muhammad Mumtaz
Ahmed v. The State (2020 SCMR 1701), Nazir Ahmed v.
The State (2014 SCMR 241) and Manzoor and 4 others v.
The State (PLD 1972 SC 81)
8. The delay in registration of FIR alone is not
sufficient ground to disbelieve the entire case of prosecution and on that
score alone bail cannot be granted in the case of murder where the accused was
alleged to caused direct firearm injury to the deceased. Muhammad AmjadShahzad v. Muhammad Akhtar Shahzad (2022 SCMR 1299) andGhulam
Qadir v. The State (2022 SCMR 750), where the Supreme
Court while observing that Though the
formal First Information Report was recorded on 17.8.2021, however, the injured
with extensive injuries were medically examined under police dockets on
13.8.2021; according to the provisional medico legal certificates, they had
reached hospital on 12.8.2021 at 6:00 p.m. just half an hour after the incident
and, thus, delay in formal registration of the case, a phenomena hardly unusual,
does not raise eyebrows. In the
case in hand the situation is same the deceased was examined by the doctor on
the day of incident without delay.
9. Admittedly the name of the applicant/accused is
mentioned in the F.I.R with specific role that he has caused firearm injury to
the deceasedMuneer Ahmed the son of the complainant;
version introduced by the complainant in the FIR was supported by the PWs in
their 161 Cr.P.C statements; Ocular evidence is
supported by the medical evidence; the delay in registration of F.I.R has been
properly explained by the complainant. In the similar facts and circumstances
the Supreme Court has declined the bail in the case of ShoukatIlahi v. Javed Iqbal and
others (2010 SCMR 966), wherein the Supreme Court of Pakistan has observed
as under:-
6.We have given due consideration to
the submission made and have gone through the material available on record.
From the record, we find that the name of the petitioner was mentioned in the
FIR; that the motive had been alleged against him; that a specific role of
raising Lalkara was assigned to him and that it was
specifically mentioned that he and co-accused fired at the deceased, which hit
him. The PWs have supported the case in their 161 Cr.P.C
statements which is further corroborated by the medical evidence, as according
to Medical Officer the deceased had six firearm injuries out of them two were
exit wounds. Thus, prima facie incident has been committed by more than one
person. From the material available on record, we are of the view that there
are reasonable grounds for believing that the petitioner is involved in the
case.
In
the case of Ghani Khan v.
The State and another (2020 S C M R 594) has held as under:-
2. After hearing the learned
counsel for the petitioner, learned counsel appearing on behalf of the State
and perusal of available record, it has been observed by us that the petitioner
is named in the FIR with specific role of firing at the complainant HazratUllah, which as per the statement of the complainant,
hit him on his right thigh and right side of his chest. The said allegation is
prima facie supported by the medical evidence. The offence alleged against him
falls within the prohibitory clause of section 497(2) Code of Criminal
Procedure. In these circumstances he is not entitled to the concession of bail.
10. There is no any contradiction on the
ocular evidence and medical evidence in respect of the injury sustained by the
deceased Muneer Ahmed from the hands of the applicantand there is also no
reason for false implication of the applicant.Supreme Court in case of Sheqab Muhammad v The State and others (2020 SCMR 1486),has held as under:-
3.
Arguments that ocular account stands contradicted by medical evidence and in
the absence of an independent witness from the public, petitioner's general
participation, resulting into an injury on a non-vital part of the body,
particularly in the absence of repeated fire shot, squarely brings his case
within the remit of further probe, are not only beside the mark but also cannot
be attended without undertaking an in-depth analysis of the prosecution case,
an exercise forbidden by law at bail stage. In a daylight affair, two persons
sustained firearm injuries besides the one having endured violence through
blunt means and as such requires no public support to drive home the charge;
their statements supported by medical examinations of even date, cumulatively
bring petitioner's case prima facie within the mischief of section 324 of the
Pakistan Penal Code, 1860, hit by statutory prohibition, in view whereof, he
cannot be released on bail in the absence of any consideration within the
purview of subsection (2) of section 497 of the Code ibid. Similarly, murderous
assault as defined in the section ibid draws no anatomical distinction between
vital or non-vital parts of human body. Once the triggered is pressed and the
victim is effectively targeted, "intention or knowledge" as
contemplated by the section ibid is manifested; the course of a bullet is not
controlled or steered by assailant's choice nor can he claim any premium for a
poor marksmanship. Exercise of discretion by the High Court being well within
the bounds of law calls for no interference. Petition fails. Leave declined.
Further the Supreme Court in
the case of Amir Faraz v. The State (2023 SCMR 308),
has settled that corroboratory piece of evidence, if missing, cannot discard
the ocular account recorded on the day of occurrence, at bail stage.
11. From the tentative assessment available on the record
as discussed above the applicant is failed to make out a case for confirmation
of his pre-arrest bail, result thereof this bail application is dismissed.
12. These are reasons of short order dated:23-10-2023.
JUDGE
Ihsan/*