IN THE HIGH COURT OF SINDH, CIRCUIT COURT
Crl. Bail Appln. No. S- 26 of 2023.
Applicant: Khadim Bhatti, through Mr. Rafique Ahmed K. Abro, Advocate.
Complainant: Hosh Muhammad Bhatti, through Mr. Imdad Ali Tunio, Advocate.
Respondent: The State, through Mr. Aitbar Ali Bullo, Deputy Prosecutor General.
Date of Hearing: 10.08.2023.
Date of Order: 10.08.2023.
Shamsuddin Abbasi, J: Trough this application, applicant Khadim son of Adam Bhatti seeks his admission to post-arrest bail in Crime No.39/2022 registered at Police Station B-Section Shahdadkot, for offences punishable under Sections 302, 114, 148 and 139 P.P.C. Earlier, bail plea of the applicant was declined by learned 1st Additional Sessions Judge, Shahdadkot, vide order dated 28.11.2022.
2. The allegation against present applicant as per F.I.R lodged by complainant Hosh Muhammad Bhatti on 13.09.2022 is that he alongwith eight other co-accused made pistol shot upon Mukhtiar Ali (the brohter of complainant), and such fires hit him on various parts of body, resulting into his death on 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 about one day in lodging of the F.I.R without giving conceivable account for such delay; that there existed old murderous enmity between the parties and in result whereof the applicant has falsely been implicated in this case; that no specific injury is assigned to applicant but there are general allegations of making pistol shots against in all nine accused persons, including present applicant, as such it would be determined after the trial that who caused the fatal shot to the deceased. Learned counsel further added that two co-accused, namely, Zulfiqar and Irfan were found innocent during course of investigation and their names were placed in column No.II of the challan sheet leaving them off and by letting off the co-accused the police did not believe the version of complainant in toto, as such the case calls for further enquiry. Lastly, he prayed for grant of bail to applicant.
4. Conversely, learned Advocate for complainant vehemently opposed grant of bail to the applicant. He argued that the applicant is nominated in F.I.R with specific role of making pistol shot upon deceased along with other co-accused and all the fires hit to deceased resulting into his death on the spot, as such the applicant is vicariously liable for the alleged murder of an innocent person; that PWs supported the version of complainant in their 161 Cr.P.C statements; that ocular version gets support from the medical evidence as well recovery of crime weapon from possession of applicant coupled with the fact that according to FSL report the empty recovered from place of incident matched with weapon recovered from applicant. Lastly, learned counsel submitted that the case has commenced and matter is now fixed before trial Court for recording evidence of prosecution witnesses and that the complainant and his witnesses are regularly attending the trial Court for recording their witnesses, but the case is not proceeding due to adjournments sought by the defence.
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. He further added that the enmity is a double edged weapon, which cut both ways. Learned D.P.G. further contended that, the grounds urged by the counsel for applicant require deeper appreciation, which is not warranted at bail stage and that case law relied upon by learned counsel for applicant is on different footings and is not helpful for him.
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 and other co-accused made pistol shots upon Mukhtiar Ali (deceased), the brother of complainant resulting into his death on the spot. The version of the complainant is also supported by the P.Ws in their statements recorded in terms of Section 161 Cr.P.C. 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. There is also recovery of crime weapon from possession of applicant coupled with the fact that according to FSL report the empty recovered from place of incident matched with weapon recovered from applicant and this circumstance prima-facie demonstrates presence of the applicant at place of incident connecting him with commission of the alleged offence. So for the main contention of the learned counsel that there is general allegation of making fire against applicant and eight other co-accused and that it would be determined at trial that whose shot become fatal to the deceased, even otherwise as per postmortem report deceased sustained eleven firearm injuries. In this context suffice it to say that this will make no difference that the injury caused by the applicant/ accused is fatal or otherwise, but the intention of the accused is very much there and even otherwise it would amount to deeper appreciation of evidence, which is not permissible at bail stage. For another contention of learned counsel regarding letting off of two co-accused by police during course of investigation, the learned advocate for complainant states at the bar that those accused persons have been joined in the case. The offence, with which the applicant stand charged, falls within the ambit of prohibitory clause of Section 497 Cr.P.C. Moreover, the trial has commenced and it is fixed for recording evidence of prosecution witnesses and case could not be proceeded due to adjournments sought by accused party.
7. For the foregoing circumstances prima-facie there appears that sufficient material available with prosecution against the applicant/ accused which connects him with commission of the alleged offence, carrying capital punishment and falls within prohibitory clause of Section 497 Cr.P.C. Accordingly, the instant bail application being merit-less stands dismissed.
8. However, needles to mention here that the observations made hereinabove are tentative in nature and would not influence the trial Court while deciding the case on merits.