O R D E R     S H E E T

IN THE HIGH COURT OF SINDH CIRCUIT COURT LARKANA

Crl. Bail Appln. No.S-620      of 2009

Date	Order with signature of the Judge

1. For orders on office objection.

2. For orders on M.A No. 2007/2009

3. For hearing.

31.12.2009.

Mr. Habibullah G. Ghori, advocate for the applicant.

Mr.  Ali Raza Pathan, State counsel.

Mr. Kashif Noor Khan Pathan, advocate for complainant.

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Ahmed Ali Shaikh, J. Through this application, applicant Rustam Jhatial seeks post arrest bail in Crime No.34/2008, Police Station Badah, registered under Section 17(4) of the Offences Against Property (Enforcement of Hudood) Ordinance, 1979. 

                   The applicant approached the trial Court, but his bail plea has been turned down by the trial Court vide order, dated 5.8.2009.

                   The facts of prosecution case, in brief, are that on 15.3.2008, at 7.30 p.m., complainant Shahabuddin Junejo, his father Muhammad, relatives Ghulam Mustafa and Shahmeer, while returning to their village from Badah, were intercepted by three culprits, who were armed with pistols and two of the culprits were identified on torch light to be Rustam Jhatial (applicant) and Barkat Jhatial, both residents of Village Koro Jhatial, Taluka Dokri.   It is alleged that on gunpoint Rustam Jhatial robbed cash Rs.2000/- from P.W Shahmir and Barkat Jhatial snatched cash Rs.700/- from P.W Ghulam Mustafa and then all the three culprits tried to rob complainant’s father Muhammad, but on resistance, offered by him, all the three culprits made straight fires of pistols at him resulting in causing his death.  The complainant after narrating the facts of incident to his nekmard Qaimuddin Junejo lodged the F.I.R.

                   It is, inter alia, contended that the F.I.R is belated by 19 hours and the source of identification of the culprits is a torch light, which is a weak piece of evidence.  It is further contended that the torch had not been produced by the complainant and there is general allegation against all the three culprits, hence it is yet to be seen that whose fire proved fatal and the P.Ws have given some different story in their 161, Cr.P.C statements.   It is also contended that there are no reasonable grounds to believe the applicant guilty of the above offence.  It is lastly contended that the case of the applicant requires further enquiry and he is entitled to the concession of bail.  In support of his contentions, learned Counsel for the applicant has relied upon the cases of Ali Nawaz versus The State (PLJ 1988 Cr.C (Karachi) 545, Ayyub versus The State (1994 P.Cr.L.J. 1057), and Moula Bux versus The State (2003 P.Cr.L.J. 394).

                   Conversely, learned State Counsel assisted by Mr. Kashif Noor Khan Pathan, advocate for complainant, have opposed the bail application on the grounds that name of the applicant finds place in the F.I.R and he has been implicated by the P.Ws in their 161 and 164, Cr.P.C statements.  The applicant was duly armed with T.T. Pistol and he alongwith co-accused had caused firearm injuries to deceased Muhammad, who died at the spot.  There is recovery of T.T. Pistol from the applicant, hence he is not entitled for the concession of bail.

                   Heard learned Counsel for the parties and perused the material placed on record.

                   No doubt, the F.I.R is belated by 19 hours, but the plausible explanation has been given by the complainant in this regard.  On tentative assessment of the material available on record, the applicant and co-accused appear to be responsible for committing murder of deceased by causing him firearm injuries.  Besides, they robbed the P.Ws.  There is recovery of pistol from the applicant.  The medical evidence corroborates the ocular version.  Moreover, the applicant and the complainant both are residents of same taluka and the name of the applicant finds place in the F.I.R with his parentage and full address of residence, therefore, question of mistaken identity is out of consideration.

                   No doubt, the benefit arising from the delay in lodging the F.I.R goes to the accused, which can also be taken into consideration alongwith other circumstances in the case at the stage of bail application, but delay in lodging the F.I.R alone is never considered a circumstance sufficient for grant of bail in a case involving capital punishment as held by Hon’ble Supreme Court in the case of Haji Gul Khan versus Gul Daraz Khan and others (1995 SCMR 1765).  So far the contention of learned Counsel for the applicant that there is general allegation against all the three accused in respect of firing at the deceased and it is yet to be determined whether the fire made by the present applicant hit the deceased is concerned, same merits no consideration at this stage.  In the case of Haji Gulu Khan (supra), Hon’ble Supreme Court while cancelling the bail granted to the accused by the High Court has held as under :-

          “Accused and his companions had alleged fired shots from their pistols at the deceased as a result whereof he fell down and died.  At such stage it was wholly immaterial as to whose shot proved fatal.  Deceased according to medical evidence had received three firearm wounds of entry.  Two empties recovered from the spot were found to have been fired from the licensed pistol of the accused.  On tentative assessment of evidence it was not possible to hold that no reasonable grounds existed for believing that the accused had been guilty of the offence which was punishable with death or imprisonment for life.”

                   With the profound respects and regard, the law relied upon by the learned Counsel for the applicant is not helpful to the accused for grant of bail, inasmuch as the cases of Ali Nawaz and Ayyub (supra) were at the stage of appeal, while in the case of Moula Bux (supra), the facts and circumstances were quite different.

                   In view of above and the dictum laid down by the Hon’ble Supreme Court in Haji Gulu Khan’s case (supra), I am of the considered view that there is sufficient material to connect the applicant with the commission of the offence as prima facie case exists against the applicant which does not entitle him to the concession of bail.

          Consequently, I find no substance in this bail application which is hereby dismissed.

                                                                             JUDGE