GULBAHAR vs THE STATE

ORDER

1. ' GHULAM DASTAGIR A. SHAHANI, J.---Bail application is moved on behalf of applicant/accused Gulbahar Jatoi in Crime No, 5 of 2006, Police Station Hatri Ghulam Shah, under sections 302, 148, 149, P. P. C .

2. ' Facts in brief of the case are that one Muhammad Fazal Jatoi recorded F.I.R. With Hatri Ghulam Shah Police Station on 30-1-2006, stating therein that there is an enmity between the parties and number of cases have been registered against each other. He further alleged that he is a Hari of Amanullah Jatoi and at evening time while he along with his cousin Muhammad Alam, Sharafuddin and Ahmed were sleeping in the Otaq of Allandin Jatoi, where of about 0230 hours, saw accused Mir, Arbello, Munsif, Mumtaz, Pathan, Dino alias Muhammad Nawaz, Nazir, Mukhtair, Lutuf, Badlo and Badoo armed with Kalashnikovs, Gulbahar armed with gun, Barkat, Yasin, Waheed, Mubarak, Sahab and Munawar armed with rifles and two unidentified persons having rifles assaulted upon them, where accused Gulbahar Jatoi challenged that Muhammad Alam is their enemy, saying so he made straight fire from his gun to Muhammad Alam which hit him and he fell down on the cot, thereafter all the accused made aerial firing with their respective weapons and went away towards northern side. They saw Muhammad Alam having fire-arm injury from back of the head which was through and through and he was lying dead. In the morning they took the dead-body of deceased for hospital and police station for recording of the F.I.R.

3. ' Bail application before Trial Court was moved on behalf of applicant (Gulbahar Jatoi), on the ground that he is innocent and implicated falsely due to enmity and complainant as well as P.Ws.

4. Have sworn their affidavits by exonerating the present accused from the commission of crime, having no objection for grant of bail. Further arguments of the learned counsel for applicant before Trial Court were that 161, Cr.P.C. Statements of P.Ws. Were recorded after delay of about eight months without any plausible explanation and further that co-accused were already on bail after arrest, and only present applicant is behind the bars, as such he prayed for concession of bail on the rule of consistency. He further argued that absconsion alone will not come in the way for grant of bail. However, after hearing to the learned counsel for applicant, as well as to the State counsel, vide order, dated 6-3-2008, bail application was rejected by the learned IV-Additional Sessions Judge, Larkana, hence present application.

5. ' Learned counsel for the applicant mostly repeated same facts and grounds. However, he added that in para.2 of the memo. Of bail application reliance was made by him on reported cases, but not a single citation has been discussed or distinguished by the Trial Court, which is illegality on the part of Trial Court.

6. ' Mr. Abbasi learned Asstt. A.-G. In view of the affidavits sworn by the complainant, as well as P.Ws., and after going through the reported cases raised no objection for grant of bail.

7. ' Heard learned counsel for the applicant as well as to the learned Asstt. A.G. And considered the facts and law relied upon.

8. ' From record it appears that active role was assigned against present applicant/accused of firing upon deceased, but complainant Muhammad Fazil as well as P.Ws., namely, Sharafuddin Ahmed as well as Mst. Zainab, the widow of deceased have sworn their affidavits exonerating the present applicant. Admittedly 161, Cr.P.C. Statements of P. Ws. Were recorded after delay of about 8 months without any plausible explanation. It is also settled principle of law, that when a person, is entitled for grant of bail after arrest, the bail before arrest even cannot be refused and submission of affidavits by the complainant and P. Ws. Possibility at compromise even cannot be ruled out. As such observation of the Trial Court in respect of tampering of evidence merits no consideration at all, as accused is to be punished on the basis of evidence of above named complainant and P.Ws.

9. And the submission of affidavits matter itself has become so weak. Reliance is placed on the case of Ali Muhammad and another v. The State PLD 2002 Kar. 125, relevant portion of page 1540, as well as a case of Muhammad Nawaz alias Najja v. The State (1991 SCM R 111) respectively.

10. ' Not only this but from face of record it also appears that 161, Cr.P.C., statements were also recorded so late (delay of about 8 months) though absconsion alone is not a ground for refusal of bail as stated above. However, in view of affidavits sworn by the complainant and P.Ws. And the law referred above case of applicant/accused is found to be fit for grant of bail as a concession. The observations recorded herein shall not affect trial proceedings, which shall proceed on its own merit according to law without being influenced by the above observations. These are the reasons for short order, dated 25-4-2008, whereby applicant was admitted to bail in the sum of Rs,200,000 (two lacs) and P.R. Bond in the like amount to the satisfaction of Trial Court.