MUHABAT Versus STATE
ORDER
1. This application for bail has been filed on behalf of applicant Muhabat son of Rahimdad by caste Jagirani, resident of village Kabil Khan Jagirani, Taluka Rohri, District Sukkur.
2. The applicant has been challaned for offence under section 17(2), E.H.O., under section 307, P.P.C. read with section 324, Q&D Ordinance on the basis of F.I.R. No.30 of 1993 of Police Station Dubar. The first information report in this case was filed by one Noor Ahmed Shah at the Police Station on 15-5-1993 at about 4-30 a.m. The offence had occurred in the house of complainant Noor Ahmed Shah, which is situated at a distance of about 1-1/2 Furlongs from the Police Station Dubar.
3. The brief facts as stated in the first information report lodged by Noor Ahmed Shah are that he resides with his family in his house and on the night of incident as usual after taking meals and closing the doors they went to sleep. At about 3-45 a.m., they heard a noise on which he and his son Ayaz Ahmed lsrar Ahmed and other members of the family got up and saw that four persons who were armed with pistol, gun and rifles, in their hands were standing there inside their house. It is alleged by the prosecution n the first information report that they had seen the faces of the culprits clearly in the light of bulbs as their faces were open. It is further stated by the complainant in his report that as they had seen the faces of the culprits clearly in the light of bulbs therefore, they will be in a position to identify them. According to him, the person who was armed with a gun asked him to hand over the keys of the house to them. On refusal one of the accused who was armed with a pistol raised his pistol and on resistance by his son Ayaz, the accused who was armed with a pistol fired at him which hit him on the right upper arm and the other accused fired upon them, on account of which, they sustained injuries on their person. They raised cries, which attracted co-villagers and accused ran away firing by scaling over the wall towards northern side of their house. They came out of their house by shouting thief thief. The police patrolling party of Dubar came there and they all chased the culprits and found one of the culprits was hiding himself in the dates trees. They caught hold of him and found that he had also, sustained injuries on his legs and other parts of the body. The injured culprit disclosed his name as Hakim Ali son of Attur Jagirani and resident of village Kabil Jagirani and further informed them that he has sustained injuries while he was jumping over the wall. He was arrested by the police. The prosecution witnesses alongwith the complainant went to the police station where Noor Ahmed Shah lodged the report. The police after usual investigation challaned the accused in the Court of law and matter is now pending before the Court of Session, Sukkur being SC No.70 of 1993.
4. An application for bail was moved before the trial Court and the same was rejected by the learned Sessions Judge on 11-8-1993 and due to the rejection of the bail application by the trial Court, this application has been filed before this Court.
5. I have heard the learned counsel for the applicant and the main contentions of the learned counsel are that the name of the accused Muhabat is not mentioned in the first information report nor even his features have been mentioned in the first information report. He has further contended that so far the injuries sustained by the complainant and his witnesses are concerned are simple in nature and no spec role has been assigned to the accused/applicant and according to him there are merely a vague allegations against the applicant. He has further contended that since the prosecution witnesses have sustained simple injuries, therefore, according to him the offence if any will be under section 452, P.P.C., which is punishable with less than 10 years.
6. The learned counsel for the State Mr. Abdul Sattar Chohan has stated that the accused has been challaned under section 307, P.P.C. read with section 324, Q&D Ordinance and 17(2) of E.H.O., and according to him even offence under section 460, P.P.C. has been made out against the present applicant, which is punishable even upto imprisonment for life, as such according to him the accused is not entitled to bail because his case comes within the Prohibitory Clause of section 497, Cr.P.C.
7. I have heard the learned counsel for the applicant and learned counsel appearing for the State and I have also gone through the entire record which has been, placed before me including the first information report, police statements and other evidence collected by the police during investigation. I have also gone through the order of the learned Sessions Judge rejecting the bail application of the present applicant.
8. It is the case of the prosecution that even the present applicant was armed with a deadly weapon and fired upon the prosecution witnesses on their resistance not to give keys of the house to the culprits. Section 460 of the P.P.C. reads as under:--
9. "If at the time of committing of lurking house-trespass by night or house-breaking by night, any person guilty of such offence shall voluntarily cause or attempt to commit Qatl of, or hurt to, any person, every person jointly concerned in committing such lurking house?-trespass by night or house-breaking by night, shall be punished with imprisonment for life or with imprisonment of either description for a term which may extend to ten years and shall also be liable to the same punishment for committing Qatl or causing hurt or attempting - to cause Qatl or hurt as is specified in Chapter XVI of this Code..."
10. It is the case of the prosecution that witnesses have sustained gunshot injuries and also the present applicant was put to identification test and was correctly picked in the identification test by the witnesses. The applicant has been fully implicated by the prosecution witnesses. It is the case of the prosecution that there was sufficient light available at the place of Wardat at the time when this incident was committed and the faces of the culprits were open and the witnesses had sufficient opportunity to see clearly the faces of the present applicant and other culprits. Apart from other offences mentioned above, I feel that the act of the present applicant also falls under section 460, P.P.C.
11. It has been held in P L D 1978 SC 256 that while deciding whether the, bail is to be allowed or rejected on the basis of evidence produced by the parties the Court is bound to make tentative assessment of its evidentiary value and section 497, Cr.P.C. does not in terms contain any restrictions on Court's power to assess evidentiary value of the material placed before it. The Courts however, have to refrain directly or indirectly from giving any conclusive finding on the question of the guilt or, innocence of the accused. It has been further held by superior Courts that even under section 497(1), Cr.P.C. in the case of an offence punishable with death or transportation for life the mere heinousness of the offence is not by itself a circumstance sufficient to take away the discretion of the Court to grant bail but in addition thereto there must also exist reasonable grounds for believing that the person seeking bail has been guilty of such offence.
12. Considering all the facts and circumstances as stated above and the fact that not a single witness has yet been examined and relying upon the principle as held in P L D 1978 SC 256, on the basis of tentative assessment of evidence, without going deeper into the merits of the case, I do not find that 8 any case has been made out on behalf of the applicant for being released on bail, accordingly the bail application is dismissed.
13. N.H.Q./M-1889/K ????????????????????????????????????????????????????????????????????????????????????????? Bail refused.