ORDER SHEET

IN THE HIGH COURT OF SINDH BENCH AT SUKKUR

Cr.B.A.No.964 of 2009

1. For orders on MA 3300/09

2. For orders on MA 3301/09

3. For hearing

ORDER

Mr.Asardass D.Hemnani Adv: for applicant.

Mr.Sardar Ali Shah A.P.G. for the state.

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On 15.5.2009 at about 12:30 p.m. this FIR was registered by Ghulam Yaseen of the incident which allegedly took place on the same day at about 10:00 a.m. According to complainant Ashique Hussain aged about 25 years was his cousin. About 25 days prior to this incident one Mir Hazar Malik, maternal cousin of the complainant was murdered and FIR of that case was registered against Muhammad Murad Gadani and others, therefore, the complainant party were pressed by the accused to withdraw from the case, otherwise another person of the complainant party will be murdered. On the day of alleged incident the complainant accompanied with his cousin Ashique Hussain, Sanaullah and Allah Rakhio proceded on donkey cart from their village to Khanpur Town while at about 10:00 a.m. they reached on the link road leading towards village Sakheero Malik near village Kashmir Gadani, saw accused Muharram @ Fouji, Muhammad Hayat, Balach (the present applicant), Muhammad Hashim all armed with kilashikoves, Muhammad Saleh, Jalal, Muhammad Murad, Mashooque, Muhammad Ibraheem all with pistols, Gul Hassan with kilashnikove, Azad with pistol all Gadani by caste r/o village Kashmir Gadani, Abdul Hafeez with rifle and four unidentified persons with kilashnikoves. According to complainant unidentified persons have been seen by them can be identified as and when seen again. All accused came infront of the complainant party got down them from the donkey cart by saying that you have not withdraw from earlier case, therefore, Ashique Hussain will be murdered. Saying so accused Muharram @ Fouji fired from his kilashnikove with intention to kill him to Ashiq Hussain which hit him on left side of his body, Muhammad Hayat fired which hit him on the right side of his lip, Balach (the present applicant) fired which hit him on left ear, Muhammad Hashim fired which hit him on back and left side of the body, Muhammad Murad and Mahshoo fired from their pistol which him on left side of the leg and Ashique Hussain raised cries and fell down. Accused pointed their weapons towards them therefore, they remained silent and thereafter all the accused made their escape. Deceased Ashique Hussain was seen by the complainant party who was dead and blood was oozing. The dead body of Ashique Hussain was brought at police station and FIR was registered.

During investigation final report was filed against nine accused including present applicant while the names of co-accused Jalal, Muhammad Murad and Mashooque were placed in column No.2.

The bail application on behalf of the applicant was filed in the trial court on 09.09.2009 but the same was dismissed vide order dated 16.09.2009 and this bail rejection order is impugned before this court in the present bail application.

Heard learned counsel for the applicant and learned A.P.G. for the state.

Learned counsel for the applicant contended that the applicant is innocent and he had committed no offence whatsoever alleged by the prosecution. He further contended that there is delay in lodging of the FIR of about two and half hours, while the police station is about four kilometer far from the place of incident. He further contended that co-accused Muhammad Saleh has been granted bail before arrest by the learned trial court vide order dated 17.7.2009 so also accused Gul Hassan, Muhammad Ibrahim, Abdul Hafeez and Azad have been granted bail after arrest by the trial court vide order dated 23.6.2009 and the case of the applicant is to some extent identical to the case of co-accused. He further contended that there are general allegations against the applicant and according to the case of prosecution he fired upon the deceased and his fire was hit to him at his ear while this allegation is not supported by the medical certificate. On this ground he relied upon the case of Muhammad Shabir vs. The state (1999 MLD 1352), Muhammad Mumtaz and another vs. The state (1999 MLD 3302), Ghulam Shabbir and others vs. The state (2000 P.Cr.R.8), Ali Ahmed vs. The state (2000 P.Cr.R.661), Muhammad Illyas and another vs. The state (2000 MLD 1604), Muhammad Jahangir vs. Kala Khan and another (2204 P Cr. L J 1843), Jehangir vs. The state (2004 P Cr. L J 1254), 2006, Shafqat Abbas vs. The state (2006 P.Cr.R.1425), Muhammad Shafiq alias Chhara and another vs. The state (2006 P.Cr.R.1432) and Loung and another vs. The state (2007 P.Cr.R.1718).

Learned A.P.G. for the state has opposed the bail application on the ground that actually there is no confliction in between medical evidence and ocular evidence. According to him injury No.3-A and injury No.3-B are related to the allegations against the applicant which in the postmortem read as under:-

Injury No.3-A

Lacerated punctured fire arm wound size 0-5 cm in dia meter x through and through at Lt temporal region (wound of entry)

Injury No:3-B

Communicating wound of size of 01 cm in diameter x through and though at LT angle of mouth (wound of exit)

He relied upon the case of Abdul Hayee and 2 others vs. The state (1996 SCMR 555)

Deceased Ashique Hussain being young man aged about 25 years lost his life and allegation of murder is against the present applicant and others. During investigation the case has been proved and final report has been filed, the present applicant is facing trial, though there is no confliction in medical evidence and ocular evidence but even if there is some minor contradiction the same needs deeper appreciation and it is settled principle of law that bail application is to be decided with tentative assessment of the material collected by the prosecution during investigation. With great respect the case law cited by learned counsel for the applicant is quite different to the case of the present applicant, I therefore, find no merits in the bail application and therefore, dismissed the same and these are the reasons of my short order dated 28.10.2009.

Dated:- .10.2009 JUDGE