GHULAM HUSSAIN Versus STATE
ORDER
1. Applicants Ghulam Hussain, Ghulam Sarwar and Fakir Muhammad, accused in Crime No.217/92 of Police Station Ghotki under sections 307, 148, 149 of P.P.C. read with section 324 as amended, have approached this Court for bail after a similar application moved on their behalf in the Court of Additional Sessions Judge, Ghotki is rejected on 12-6-1993. Earlier to this order of trial Court, bail application of the applicants and co-accused Gaman and Punhoon was heard by learned Assistant Sessions Judge Ghotki who also rejected the bail application on 5-5-1993.
2. F.I.R. was lodged by one Muhammad Bachal who stated that Habibullah (injured) is his cousin, serving in the office of S.S.P. Sukkur. Habibullah used to go to his office every morning and return in the evening. On the day of incident, complainant, his uncle Allah Wassayo (father of Habibullah) were sitting at the "Otaq" when they heard fireshots towards the road side. The complainant rushed towards that side and saw one Lutafullah coming on his motor-cycle who informed complainant that he and one Muhammad Aslam were coming on the motor-cycle towards the village while Habibullah was also riding a motor-cycle, a little ahead of them, coming towards the village. From the adjacent garden of Allah Dino, five persons emerged and they were identified to be Ghulam Hussain, Ghulam Sarwar, Fakir Muhammad and two unknown persons. Of them, Ghulam Hussain was armed with a rifle, Sarwar with a pistol while Fakir Muhammad and the unidentified persons were armed with guns. The culprits were identified on the headlight of the motor-cycle. Ghulam Hussain and Ghulam Sarwar fired direct shots at Habibullah who fell down and thereafter accused Fakir Muhammad and the unidentified culprits also fired at Habibullah. The incident was then reported to police. In the F:I.R. it is also shown that injured Habibullah had disclosed that some times back, his brother Abdullah was murdered at the instance of Ghulam Hussain and in the "Faisla" some terms were settled but as the "Faisla" was, subsequently, not accepted, this offence was committed by Ghulam Hussain and others.
3. I have heard the learned counsel for the applicants and the A.A: G. The latter has vehemently opposed the bail application. It is contended by applicants' learned Advocate that the time of occurrence shown in the F.I.R. is 9-30 p.m. and F.I.R. was lodged after injured Habibullah was taken to the hospital where the doctor had shown the time of arrival of injured as 10-00 p.m. Thus when the F.I.R. is lodged after injured was received at the hospital the time of the registration of F.I.R. contradicts with the report of the doctor, it would be a strong circumstance to believe that F.I.R. was fabricated at the instance of injured Habibullah who was admittedly a clerk in the Office of S.S.P. Sukkur. It is next argued that the identification of culprits is on the light of motor-cycle and such identification has been held to be of no evidentiary value and reference in this respect is made to 1970 P Cr. L J 633, 1968 P Cr. L J 590, 1990 M L D 1055 and 1988 M L D 237. It is also argued that accused Ghulam Hussain was at the relevant time, when incident took place, serving as trollyman in Pakistan Railway at Kotri, as certified by the Assistant Executive Engineer and the certificate would show false implication of Ghulam Hussain due to previous enmity between the parties. The plea of alibi, as contended by the learned Advocate, could be considered by this Court even at bail stage and for that reliance is placed on 1992 M L D 1607 and P L D 1978 SC 256. It is also argued that although the injuries are certified to be grievous but are not declared dangerous and this fact again makes case of applicants as of further enquiry and they would be entitled to grant of bail. Reliance is placed on P L D 1989 Pesh. 31 and 1986 P Cr. L J 2716. The last contention of learned Advocate for the applicants is that the gun and the bullets allegedly recovered either from the accused or from the scene of offence are not sent to ballistic expert and in view of the case-law laid down in 1989 P Cr. L J 103, plea of bail could validly be considered on that ground again.
4. Learned AA: G. has argued that previous enmity between the parties is admitted in the F.I.R. and the names of all accused are mentioned in the F.I.R. and so also the part played by each of them. It has next been argued that accused Ghulam Hussain has raised the plea of alibi but during investigation he never took such stand and it will, therefore, be appropriate to consider such plea during trial but not at bail stage, although, the learned A.A.-G. concedes that such plea could be considered at bail stage provided it had been disclosed by the accused even during investigation which is not the case here. Mr. Rana M. Shamim Advocate who appeared alongwith injured Habibullah has also been heard. It has been argued that the first bail application was filed before the trial Court but it was withdrawn on 12-1-1993 and all grounds except the plea of alibi were taken in the said application. It was during the second bail application that plea of alibi was raised on behalf of accused Ghulam Hussain which is obviously an afterthought. It has also been argued that in these circumstances it is the function of the trial Court to look into the plea of alibi raised by accused and reliance in support of this contention is placed on P L D 1974 SC 83 which judgment was also referred in the case reported in 1984 S C M R 128. Mr. Rana M. Shamim lastly argued that the police station and the hospital are close to each other and if there is some contradiction in the time shown in the F.I.R. and the time when doctor received the injured the same would be insignificant and such controversy should also be left to be resolved by the trial Court.
5. All applicants in this application are named in the F.I.R. and shown carrying different weapons and also attributed specific role of causing fire-arm injuries to Habibullah. In the circumstances of the case when the parties were known to each other the identification of culprits on the head light of motor cycle, in my view, would not show that the involvement of the applicants was false or their names given after due deliberation. There are two other witnesses, namely, Lutafullah and Aslam who also witnessed the occurrence and no animus is shown against them. The contentions of learned Advocate for the applicants do not prevail in the circumstances and the points urged by him are left to be determined by the trial Court. Case of applicants, as argued is not of further enquiry and no grounds are made out for grant of bail. The application is accordingly dismissed.
6. N.H.Q./G-358/K Bail refused.