ALI NAWAZ vs THE STATE

ORDER

1. ' BIN YAMIN, J.-This order will dispose of bail application made on behalf of accused Ali Nawaz son of Hamir Dars who is detained in case F.I.R. No, 12/2006 registered under sections 302, 324, 337A-ii, 337-F-ii, 147, 148, 149, P.P.C. At Police Station Darro District Thatta.

2. ' Brief facts of the case are that on 3-2006 complainant Ali Bux Jakhro lodged F.I.R. At Darro Police Station stating therein that there is a dispute on water course in between accused party and complainant party. That on 20-3-2006 at about 8-30 hours while his uncle Qurban Ali was going along the railway track, he was intercepted by accused Younus son of Dhanidino Dars armed with hatchet and Rano son of Khairoo Dars, who asked him not to pass through their land. On this harsh words in between his uncle Qurban Ali Jakhro, and Younus and another were exchanged. It is further alleged that the said Younus extended threats to Qurban Ali Jakhro that they will not spare him. It is further stated that said Qurban Ali Jakhro on his return narrated the afore noted facts to the complainant and others. After hearing the story of Qurban Ali Jakhro, complainant and others whose names are mentioned in the F.I.R., left for police station, to lodge the F.I.R. Of the matter, it is further stated that When complainant party reached at the Primary School Darro near the post office, there applicant/accused armed with hatchet and others also armed with hatchets and one Qadir Bux armed with shpt gun attacked upon the complainant party. That man armed with gun started firing upon the complainant party. In the incident the applicant/ accused is alleged to have caused^ hatchet's sharp side blow to the deceased Nabi Bux. On the cry of complainant, persons of the locality came and rescued the complainant and others from the applicant/accused and others. Complainant then brought Nabi Bux and others to hospital from where Nabi Bux was referred to L.M.C. Hyderabad where he died. Complainant came to lodge the F.I.R. Of the matter, ' Applicant/accused Ali Bux was arrested by police on 24-3-2006 and hatchet was recovered from his possession on 5-4-2006, since his arrest the applicant/ accused is detained in custody. Earlier bail application moved before the learned trial Court was rejected on 25-9-2007, hence this bail application.

3. ' Heard learned counsel for the applicant/accused, Mr. Abdul Waheed Siddiqui learned State counsel and perused the case papers.

4. ' Learned counsel for the applicant/ accused submits that he is innocent and has falsely been implicated in this case. His further contention is that the active part is attributed to one Younus but he was discharged by police. Subsequently application made by the complainant for joining the said Younus as an accused in this case but it was rejected by the learned trial Court. He further contended that coaccused Ghulam Dastagir, Abbas, Ali Bux, Saleem and Shahnawaz have been granted bail by this Honourable Court, therefore, under the principle of rule of consistency this accused is also entitled to the grant of bail. He further contended that perusal of case paper shows that statement of P.Ws. Were not recorded by the police under section 161, Cr.P.C. On the day of the incident, but the same were recorded after about 8 days of the incident. This delay in recording the statement under section 161, Cr.P.C. Of the witnesses creates doubt therefore veracity of the P.Ws. Is under the clouds. In this regard he referred to PLD 2006 PLD SC 247 and 2004 Cr.L.J 1246, that the alleged recovery of hatchet from the possession of applicant/accused was effected on 5-4-2008 and this recovery made after long delay of the incident, also creates doubt. In this regard he relied upon 2008 YLR 887. He further contended that after the incident injured remained alive for 5/6 hours but neither dying declaration was recorded nor his any other statement was recorded as to who caused him injuries. That the main accused of the case namely Younus has been discharged by the police therefore, this fact is creating serious doubt regarding the veracity of the witnesses about the involvement of the applicant/ accused in this case, particularly when earlier enmity exists in between the applicant/accused's party and the complainant party.

5. ' He further contended that it is alleged that 9 persons from the complainant party and 11 persons from the accused party allegedly took part in the incident, therefore having regard to presence of such a large number of persons, there was every possibility that the deceased might have been saved by their intervention from the accused, in this regard he relied on 2008 YLR 1206.

6. ' That a non-cognizable report on the same day of incident at 10-30 hours was lodged by some of the accused which was recorded at this very police station and subsequently some of the witnesses examined by the police have stated that some of the accused involved in this case were not available at the place of incident and were present in some other village. That this aspect of the case was taken into consideration by another bench of this Court, which granted bail to co- accused. That applicant/accused is behind the bars for more than 2 and half years but the case is at preliminary stage, therefore, there is no possibility of its conclusion in near future. He, therefore, requested that application under consideration may be allowed and accused may be released on bail at this stage.

7. ' Mr. Abdul Waheed Siddiqui Advocate for State had opposed this bail application on the ground by submitting that so far as non-recording of the dying declaration of deceased is concerned, medical certificate/post-mortem report shows that injury No,l found on the person of deceased was sufficient to cause his unconsciousness, on sustaining this injury. Therefore, in these circumstances, non- recording of dying declaration stand specifically explained and contentions raised in this regard become irrelevant that a blood-stained hatchet was recovered on pointation of the accused after his arrest which support to the fact that the was available at Wardat at the time of this incident. That the specific role in the incident has been assigned to the applicant/accused as in the incident he used the hatchet which he was holding at that time. That the allegations of the complainant in this regard, find full support from the medical certificate. That the previous enmity between the parties exists and prior to this incident, some harsh words were exchanged between the member of the complainant party and accused party. Therefore, there is possibility that the applicant/accused and others had come prepared after forming unlawful assembly to attack on the complainant party and caused death of Nabi Bux.

8. ' That delay can be considered in recording statement of P.Ws. By police at this stage but the same cannot be deeply investigated. That the case is at preliminary stage as evidence of none of the prosecution witnesses has been recorded. That facts of the reported cases referred to by learned counsel for the applicant/accused are materially different from the facts of this case. Furthermore it is well settled law that criminal cases should be decided on their own merits, therefore, principle laid down in the decided cases are not applicable to the facts of this case. That delay in the trial of the case has taken place because of fact beyond the control of prosecution as report of chemical examiner is not available with the police and also because of the fact that advocates were observing strike. He; therefore, requests for rejection of the instant bail application.

9. ' I have considered the contentions raised at bar and have also perused the case papers. Perusal of case shows that specific role in the incident has been assigned to the applicant/accused. The allegation of the complainant against applicant/accused also find support from medical certificate/post- mortem report issued by the doctor which shows that "injury No,l in size 14 c.m.

10. Cutting mussels and major vassals on side of neck." Furthermore, it is well. Settled law that at the time of decision of bail application deep appreciation of evidence of prosecution witnesses cannot be undertaken. Admittedly, this case is at preliminary stage and evidence of non of the prosecution witnesses has been recorded. Therefore, I am of the opinion that at this stage on the basis of material available on record, reasonable grounds exist, which shows that accused is guilty of offence punishable with death of imprisonment for life. Therefore his case falls within the Prohibitory Clause of section 497, Cr.P.C. And he is not entitled to the concession of bail at this stage. Finding no merits in this bail application. I reject the same.

11. ' However before parting with this order. I would direct the learned trial Court to dispose of this case within 9 months from the date of receipt of this order without fail under intimation to learned M.I.T.- II of this Court.