MUNAWAR ALI Versus THE STATE
ORDER
1. Throng this application the applicant/accused, Munawar Ali son of Muhammad Ismail Jamali, seeks bail in Crime No.207 of 2001, lodged at Police Station. Market Hyderabad on 13‑11‑2001 at 1950 hours under section 302, 34 P.P.C., Sessions Case No.596 of 2001.
2. The brief facts of the case as narrated in the F.I.R. are that on 13‑11‑2001 at about 3‑30 p.m., the complainant, Imdad Hussain Shaikh and his son Sibtain Hyder alongwith the brother of the complainant Dr. Ghulam Ali Shaikh, who was CMO in Central Jail, Hyderabad, descended from the house of another brother of the complainant, Mr. Aijaz Shaikh, situated near Haider Chowk. As Dr. Ghulam Ali left the place on his motorcycle, the complainant and his son noticed that accused Kehar Ansari and his three accomplices who were standing there, started chasing Dr. Ghulam Ali on two motorcycles, whereupon, the complainant engaged a Rickshaw boarded the same alongwith his son Sibtain Haider and started following the culprits. Kehar Ansari and his accomplices remained a little distance ahead of them and as the culprits turned towards Doctor's Colony the complainant saw that the culprits after intercepting Dr. Ghulam Ali started hitting him with Pistol Butts on his head. On seeing the complainant and his son the culprits fled away.
3. The complainant and his son, with the help of three other persons who were present there, lifted Dr. Ghulam Ali who had fallen to ground and was soaked in blood, and took him to Civil Hospital in a precarious and unconscious state. At the hospital they remained busy in the follow up and in the meanwhile informed the police and their relatives about the incident on telephone.
4. The F.I.R. was initially lodged under section 324, P.P.C., the same was converted for offence under section 302, P.P.C. after. Dr. Ghulam Ali succumbed to his injuries.
5. The bail, application trade by the present applicant accused before the learned Additional District Judge, Hyderabad was dismissed by order dated 23‑9‑2002.
6. Mr. Allah Bachayo Soomro, the learned course for the applicant submitted that the applicant has been falsely implicated in the case. He pointed out that there is a delay of about twenty eight hours in lodging, F.I.R. as the incident took place on 13‑11‑2001 at 16‑00 hours, whereas, the F.I.R. was lodged on 14‑11‑2001 at 19‑50 hours. He further submitted that neither the applicant has been name in the F. I. R. nor the F.I.R. contained any description of the applicant and that there are contradictions in the narration as contained in the F.I. R. the statement of Sibtain Hyder recorded under section 161, Cr.P.C. and under 164, Cr.P.C. and the statements of the two other prosecution witnesses recorded under sections 161 and 164, Cr.P.C. He submitted that in his 161, Cr.P.C. statement Sibtain Haider has stated that Kehar Ansari and his three accomplices attacked the victim with pistol butt, whereas the other, eye‑witnesses in their 161, Cr.P.C. statements had stated that Kehar Ansari hit the victim with pistol butt and the other accomplices hit him by iron bars. He further submitted that the statements under section 164, Cr.P.C. were recorded belatedly and further that the applicant was identified only by complainant and Sibtain Haider and the other two eye‑witnesses did not participate in the identification test and further the complainant and prosecution witnesses Sibtain Haider had seen the applicant in the lock‑up before the identification parade. The learned counsel contended that the applicant being a student of Mehran University was known to the complainant who is Additional Registrar in the said University and was also known to P.W. Sibtain Haider who is a student of the same University and that in the event the applicant would have participated in the crime, his name would have‑been mentioned in the F.I.R. However, he has not been so nominated in the F.I.R. and has thus been falsely implicated in the case after deliberation and consultation. He relied on the following judgments "1995 SCMR 127, PLD 1996 Kar. 246, 1980 SCMR, 784, 1993 SCMR 550. 2002 PCr. LJ 494 and PLD 1981 SC 142".
7. On the other hand, Syed Madadally Shah, the learned counsel for the complainant whilst opposing the application, vehemently, submitted that the applicant alongwith the other accused, have committed a pre‑concerted murder. They were waiting; for the victim at the particular spot near his brother's house, intercepted him after a long chase and gave him pistol and iron bar blows on his head, causing fatal injuries to the victim. He further submitted that after the attack the victim was taken to the hospital by the complainant party in a precarious state where he had undergone a neuro‑surgery in the night of the incident. The complainant and his son since after the incident remained busy at the hospital in their efforts to save the life of his brother. The complainant, however, in the meantime had informed the police of the incident on telephone. He further submit d that in the circumstances there was no question of any consultation before lodging the F.I.R. and had it be so the names of the three accord polices including the applicant and of the three eye‑witnesses would have been mentioned therein. The learned counsel also controverted the claim of Mr. Allah Bachayo Soomro that the statements of the eye witnesses under section 161, Cr.P.C. and 164. Cr.P.C. were recorded belatedly. He pointed out that the F.I.R. was lodged on 14‑11‑2000 and it was on the same day that statements under section 161, Cr.P.C. of P‑S. Sibtain Haider, Feroze Din and Abdul Jabbar were recorded whereas, statements under section 164, Cr.P.C. were also recorded without any delay as the applicant was arrested on 30‑11‑2001; was identified on 1‑12‑2001, and the statements under section 164, Cr.P.C. were re coded on 3‑4‑2001, as 2‑12‑2001 was a Sunday. It is submitted that in heir statements under section 161, Cr.P.C. Feroze Din and Abdul Jabdar, the independent eye‑witnesses, have clearly stated that Kehar Ansar' gave pistol butt blows to the victim whereas his other accomplices inflicted iron bar blows on the head of the victim. The version has been reaffirmed by all the eye‑witnesses in their statements recorded under section 164, Cr.P.C. and such fact is also corroborated by the medical report which clearly states that injuries on the head of the victim were caused by the iron bars also. The learned counsel submitted that there was absolutely no reason for the complainant and for the witnesses to implicate the accused falsely as there was absolutely no enmity between the complainant party and not even a faintest suggestion has been made by the applicant in that regard and that while identifying the app: cant the complainant and P.W. Sibtain Haider have clearly implicated him in the murder. He further submitted that complainant and P.W. Sibatin Haider, were honest and truthful in identifying the applicant as they did not identify the other suspect, namely Sohail Leghari who also was put to identification test alongwith the applicant. The learned counsel for the complainant relied upon the following judgments 1982 SCMR 84, 1999 SCMR 1794, 1983 SCMR 15, PLD 1994 SC 65 and 1990 CMR 579.
8. Mr. Anwarul Haq Ansari, the learned State counsel also opposed the bail application.
9. I have heard the learned counsel and perused the record of the case with their assistance.
10. According to the F.I.R., accused Kehar Ansari, alongwith his three accomplices, who all were waiting for the victim near the house of his brother, chased and intercepted him and inflicted fatal blows on his head. The independent eye‑witnesses in their statements under' section 161, Cr.P.C. have early stated that they saw that Kehar Ansari inflicted pistol butt blows c the head of the victim whereas his three accomplices were hitting him on his head with iron bars, which fact they reaffirmed in their statement under section 164, Cr.P.C. The medical report also corroborates the statements of the eye‑witnesses, inasmuch as it confirms that the injuries to the victim were caused by iron bars also. Delay in lodging F.I.R, is natural in the circumstances of the case as the victim was taken to the hospital in an unconscious and precarious state, where he underwent a neuro‑surgery in the night of the incident. The complainant and his son Sibtai Hadier were naturally anxious for the life of his brother/uncle more than in anything else. Had the delay been a result of any consultation or deliberation the name of the applicant and the independent eye‑witnesses would have been included in the F.I.R. The complainant and/or any the eye‑witnesses had no enmity with any accused. There is of delay in recording statements of the eye‑witnesses under section 161, Cr.P.C., which were recorded on 14‑11‑2001, the day the F.I.R. a is recorded. Statements of witnesses under section 164, Cr.P.C. were also recorded promptly after the arrest and identification of the applicant. The judgments relied upon by Mr. Allah Bachayo Soomro are no applicable to the present case. The judgments reported in 1995 SCMR 127, PLD 1996 Kar. 246, 1993 SCMR 550 and PLD 1981 SC 142 were rendered in appeals filed against conviction and do not apply to the bad matters.
11. Reliance placed by the learned counsel on the case of Jaffer and others v. The State (1980 SCMR 84) is misplaced for the reason it was a case of sudden fight between two parties in which there was a counter‑version that the magi accused therein had also filed a F.I.R, alleging to have sustained injuries inflicted on him by the deceased and his companion while he was trying to retrieve cattle seized by the deceased and thus there was a plea of self -defence which made the case of the prosecution fit for further inquiry.
12. In view of the over all assessment of the evidence collected by the prosecution at this stage I do not find the inconsistencies as pointed out in the narrations, as contained in the F.I.R. and the statements of the independent eye‑witnesses, as providing any‑ground or justifying grant of bail to the applicant. The bail application is dismissed.
13. H.B.T./M‑77/K Application dismissed.