IN THE HIGH COURT OF SINDH
CIRCUIT BENCH HYDERABAD
CRL. BAIL APPLICATION NO.S-54 OF 2014
Applicant: Hajji Sheral son
of Hajji Mahmood
through
Syed Madad Ali Shah, Advocate.
Complainant: Mr. Ahsan Gul Dahri, Advocate.
Respondent: The State,
Through: Mr. Muntazir Mehdi, APG.
Date of hearing: 25-07-2014.
Date of Order : 25.07.2014
ORDER
SALAHUDDIN PANHWAR, J. Through instant
application, applicant seeks post arrest bail in crime No.07/2008 under Section
302,147,148 PPC of P.S. Bachalpur.
2. Precisely,
relevant facts are that complainant Roshan Ali lodged FIR on 14-10-2008 at 1300
hours at P.S. Bachal Pur stating therein that his son Wahid Bux, aged about 20
years, was farmer on the land, owned by landlord Muhammad Hashim Bughio. On
09.10.2008, they along with few other Haries (peasants) were available at the land;
mean while at 12:30 noon accused (1) Haji Sheral armed with Kalashnkov (2)
Ghulam Mustafa armed with rifle (the applicant accused) (3) Daleel armed with
rifle (4) Shahmir armed with gun (5) Khamiso armed with gun (6) Pehalwan armed
with rifle (7) Gul armed with rifle, emerged there and accused Haji Sheral Rind
made straight fire upon Wahid Bux which hit on his head and he fell down while other
accused, in order to harass the complainant, made aerial firing. At such time
Muhammad s/o. Saban Bughio and Muhammad Essa s/o. Muhammad Siddique Bughio and
Muhammad Chuttal s/o. Muhammad Ismail were available at place of incident who
rescued them from accused party. Thereafter, complainant found that Wahid Bux had
sustained injury on right side of head and blood was pouring; the complainant
party obtained letter for medical treatment and went to Qazi Ahmed Hospital
where duty doctor referred them to PMCH where the injured Wahid Bux succumbed
to injuries. Thereafter, the complainant lodged F.I.R.
3. The learned
counsel for applicant has, inter alia, contended that the FIR is delayed for
five days for which no reasonable explanation has been given; FIR was lodged
against accused at the instance of one Ghulam Jelani; that co-accused Daleel,
Shahmir, Pehalwan, Ghulam Mustafa and Khamiso have been granted bail by this Court;
during investigation police released accused under Section 497 Cr.P.C. due to
lack of evidence against the accused party and disposed of the case as a “B”
class but concerned magistrate did not agree with the report of investigation
officer; Nothing has been recovered from possessions of applicant; there is
conflict between the provisional medical certificate and final postmortem
report and there is also conflict between ocular version and postmortem report;
applicant is aged about 65 years and infirm and thus is entitled for concession
of bail; applicant was not aware about the pendency of the case as he was in
the province of Balochistan. Hence same is neither intentional nor deliberate.
He has relied upon case laws reported in 2012
SCMR 1137, 2013 P.Cr.L.J. 421, 2004 YLR 2434, 2011 P.Cr.L.J. 485, 2012 MLD 994,
2006 P.Cr.L.J. 639 and 1985 SCMR 1701.
4. On the
other hand, learned counsel for complainant as
well as A.P.G. for State opposed the grant of bail to the accused on the
plea that name of accused is mentioned in the FIR with specific role of causing
fire arm injury to deceased Wahid Bux resultantly, he died; ipse dixt of police
is not binding upon the courts, while deciding bail applications; that accused
remained absconder for about five years and therefore was declared as
proclaimed offender, being fugitive of law, he loses the normal right of bail.
5. I have heard the respective
arguments and have made a meticulous examination of the available record.
6. It would suffice to respond the plea of the learned counsel
for the applicant / accused regarding delay of five days in reporting the
matter that the delay in reporting the matter is not always sufficient to
disbelieve the prosecution case, however, it may, at the most, could be taken
as a circumstance in favour of the accused. Such circumstance alone, however,
is never sufficient to entitle an accused for grant of bail if, otherwise, he
is found to be linked with commission of the offence with which he stands
charged.
7. In the instant case number of accused persons were named in
the FIR but it is the present applicant / accused only who has been alleged to
have caused fatal shot to the deceased which cost a precious life while other
accused persons were alleged to have made aerial firing. I may endorse here
that delay may prompt one to widen the net yet blood-relation stick with main
allegation and since the fatal shot injury has been attributed to the applicant
/ accused, therefore, grant of bail to other accused persons cannot be insisted
as rule of consistency which is available only where circumstance (s) of
both case (s) are identical one.
8. As regard the plea of conflict in medical and ocular
account, it would sufficient to say that this is not the stage where such a
question could be taken in detail. However, prima facie perusal of the record
shows that death was reported to be result of fire-arm and such allegation is
attributed to applicant / accused, therefore, at this stage, it would not be
justify to take this as a ‘conflict or material contradiction’ which is
of a nature causing a serious dent in prosecution case.
9. The applicant / accused has attempted to justify his long
and inordinate abscondance while claiming to have received injury at hand of
the present complainant party and then to have remained hospitalized. This plea
does not appear to be logical for reason that by taking this plea the applicant
/ accused acknowledges happening of the incident regardless of claims of
respective sides hence this cannot be believed that he was not aware of the
case for a period of five years. Besides this, an injured is always shifted to
nearest place not to a far place as admittedly happened in this case that
applicant / accused claims to have remained hospitalized at Balochistan. The
applicant / accused has not attacked or question the legality of the
proceedings Under Section 87 & 88 Cr.PC. Where a proclaimed offender does
not challenge legality of proceedings U/s 87 & 88 Cr.PC nor points out an
illegality in procedure thereof then presumption would be ‘positive’ else
purpose of proceedings shall stand frustrated. There can be no denial to the
legally established position that a
fugitive of law looses some of substantial rights and an intentional and deliberate
abscondance shall result in creating an adverse inference against him. However,
it would be open for the applicant / accused to justify / explain his all plea
(s) hence the same is left open for learned trial court to determine at proper
stage.
10. There has been pleaded no such motive or consideration by the
applicant / accused which could be believed to be of such a nature that it
prompted the complainant party to falsely involve applicant / accused with
fatal role , costing life of blood-relation of complainant. In absence of such
a motive couple with long and inordinate abscondance are the circumstance,
even, which prima facie results in adverse inference against the applicant /
accused.
11. Further, the prosecution witnesses have supported each other
in respect of the allegation against the applicant / accused and since to bring
a case within meaning of the ‘further inquiry’ the accused has to make
reference to prosecution material but not on hypothetical basis. Thus the
applicant / accused, per prosecution case, appear to be linked with commission
of the offence.
12. In view of above discussion I am of the firm opinion that the
applicant /accused has failed in bringing his case out of the provision of
Section 497(i) Cr.PC. to one under Section 497(ii) Cr.PC hence has no case for
grant of bail at this stage. Accordingly, through short order dated 25.07.2014 the bail
plea of the applicant / accused was declined. Needless to add here that
observations, if any, shall cause no prejudice to case of either parties i.e
prosecution and defence at relevant time of determination of question of guilt
or otherwise.
J
U D G E
Karachi:
Dated:___________
Sajid