ORDER SHEET
IN THE HIGH COURT OF SINDH,
CIRCUIT COURT, HYDERABAD.
Cr.Bail.Appl.No.S- 809 of 2014
DATE ORDER WITH SIGNATURE OF JUDGE
09-02-2015.
Mrs. Fouzia Zahoor Baloch, Advocate for applicants.
Mr. Shahid Shaikh, A.P.G. for the State.
Mr. Hameedullah Dahri, Advocate for complainant.
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SALAHUDDIN PANHWAR, J: Through instant application, the present applicants seek their release on post arrest bail in Crime No.53/2013 registered at Police Station Sakran, U/s 302, 353, 337-H(ii), 109, 34 PPC.
2. Precisely, it is alleged that due to murder of one Aijaz Rind, killed in face-off with police, applicants accompanied with two other accused persons waylaid the complainant and her husband; applicant Mukhtiar was armed with pistol while applicant Iqbal Ahmed was armed with hatchet; two accused persons, who were armed with pistols (including the applicants), caused fire shot injuries to deceased Ali Sher Solangi and in result thereof he received 4/5 firearm injuries whereas applicant No.2 Iqbal Ahmed caused hatchet injuries. Resultantly, Ali Sher succumbed to injuries hence such F.I.R. was lodged; applicants were arraigned.
3. Learned counsel for applicants inter alia contends that ocular account is contrary to the medical version; according to complainant accused persons intercepted them and caused firearm injuries whereas medical evidence reveals that deceased Ali Sher received injuries on back side; statements of witnesses were recorded belatedly; applicants were arrested on 04.06.2013 whereas recovery of weapons was affected on 12.06.2013 which is considerable period to create reasonable doubt with regard to prosecution story. In support of her contentions, she has relied upon 2012 YLR 2025 and 2013 SCMR 1415.
4. Conversely, learned A.P.G. as well learned counsel for complainant argued that names of applicants appear in F.I.R. with specific role; both applicants actively participated in the offence whereby one Police Constable lost his breath; there is no conflict in ocular and medical version as the medical evidence shows firearm injuries so was claimed through ocular account hence both are in same line; that deceased received injuries on back side cannot be termed as fatal; recovery of empty shells as well of crime weapons was effected from the site and such crime weapons were sent for F.S.L and report thereof received in positive. In support of their contentions, learned counsel for complainant relied upon 2013 YLR 156, 2012 SCMR 556, 1996 SCMR 555, 2010 SCMR 966 and 2011 YLR 2270.
5. After careful consideration of contentions raised by learned counsel for the parties and meticulous examination of available record, it is matter of record that specific allegations are leveled against both applicants with regard to causing injuries to deceased Ali Sher Solangi. It is also surfaced that crime weapons recovered from the applicants were sent to Ballistic Expert and report thereof received in positive, which advances prosecution case. Besides, matter was reported by complainant within a shortest period that accused persons committed murder of her husband, a police JAWAN as a revenge of death of one of their companions in a police encounter. The applicants have pleaded no enmity or consideration against the complainant for putting direct allegations against them (applicants/accused) in murder charge of her husband. Absence of a reasonable plea of false involvement is also a circumstance advancing ‘reasonable grounds’ towards prosecution case, particularly where the informant is blood relative and a woman. With regard to pleas of learned counsel for applicants that there is delay in recovery of crime weapon so also in sending same for F.S.L, it would suffice to say that such delay is not always fatal if explained by the prosecution. Explaining delay would always require evaluation of evidence hence it is not the proper stage to give any opinion in this regard because deeper appreciation is not permitted. As regard the plea of applicants that deceased received firearm injuries on back side who was alleged to be waylaid by accused persons, it would suffice to say that diving deep in search of hypothetical situation (s) / questions is not permissible at bail stage but the defence side is required to make out a case of, prima facie, ‘further inquiry’ within available prosecution material.
6. So far as to plea of learned applicants’ counsel regarding contradiction in ocular and medical evidence, admittedly ocular account speaks about use of firearm weapons in the crime and medical evidence also reflects the same hence it cannot be termed that there is contradiction in medical and ocular. Moreover, complainant who is a lady and in her presence allegedly her husband was murdered, cannot be expected to furnish every minute details of incident while reporting the matter of murder of her husband.
7. What has been discussed above, prima facie, suggest reasonable grounds to believe that the applicants are linked with the offence with which they are charged hence their case is not falling within meaning of Section 497(ii) Cr.P.C
Consequently, instant application being devoid of merits is hereby dismissed. Trial Court shall, however, proceed with the case expeditiously and it is expected that same will be concluded within six (06) months with compliance report.
JUDGE
Tufail