MUHAMMAD ALI Versus State

ORDER

GHULAM SARWAR KORAI, J.--- On 21-1-2009 at about 1530 hours F.I.R. was registered by Abdul Qayoom Agha of the incident of the same day at about 12-00 noon. According to him deceased Muhammad Ashraf Agha was real cousin of the complainant have fruits business at New Sabzi Mandi. He was disputing with Hazrat Hotel over money matter. Private Faisla was held by Ashraf Agha President of A.N.P. therefore accused party was annoyed and gave him threats of dire consequences. On the day of incident at about 12 noon complainant was sitting in his office while Abdullah came there and informed the complainant that Abdul Sattar and his son came at the shop of Ashraf Agha enquired from him whereabouts of Ashraf Agha therefore he was phoned Ashraf Agha while he came at the shop of Abdul Sattar then Abdul Sattar instigated his son to kill Ashraf Agha, Ashraf son of Abdul Sattar took his pistol and second son of Abdul Sattar caught hold Ashraf Agha, therefore, Ashraf son of Abdul Sattar fired from pistol, Ashraf Agha become injured and fell down. Accused also pointed the pistol towards Abdullah, Abdul Sattar and his two sons made their escape in a black colour car. Ashraf Agha was found seriously injured, blood was oozing. He was shifted to Hospital, where his death was confirmed by the Doctor.

2. During the investigation applicant and co-accused Muhammad Yousuf were arrested. Final report was filed by placing the name of Abdul Sattar and his son Muhammad Ashraf as absconder and the case is pending trial in the Court of IIIrd Additional Sessions Judge, Malir vide S.C. No.141 of 2009 The State v. Muhammad Ali and others.

3. Bail application of the applicant was filed but the same was dismissed by learned IIIrd Additional Sessions Judge, Malir on 15-7-2009 that order is impugned before this Court in the present bail application.

4. Heard Mr. Riaz Ahmed Bhatti, advocate for the applicant and Mr. Muhammad Nawaz Advocate for the complainant and Ms. Rahat Ahsan, DPG for the State.

5. Learned counsel for the applicant contended that complainant himself is not eye witness of the incident. The role of Abdul Sattar, father of the applicant is he pointed his pistol instigated his sons, while his son Ashraf fired from the pistol to deceased Ashraf Agha and second his sons not named in the F.I.R. caught hold the deceased. He further contended that applicant is not named in the F.I.R., therefore, no role is against him. The applicant was arrested during the investigation, therefore, he is no more required for the purpose of investigation.

6. This application was opposed by the learned Counsel for the complainant. He contended that on the day of incident deceased lost his life at the instigation of the father of the applicant, brother of the applicant fired from his pistol and deceased caught hold by the present applicant, though he was not named in the F.I.R. but material collected during investigation is sufficient to hold involvement of the applicant in the commission of offence. In support of his contentions he relied upon the case of Muhammad Arshad v. The State 2006 SCMR 966, Khurram Raza v. The State 2008 MLD 547 Muhammad Rafique and 4 others v. The State 2008 PCr.LJ 351 {Shariat Court (AJ&K)} and Zarif Khan v. The State 2005 PCrLJ 330.

7. In support of his contentions, learned counsel for the applicant relied upon the case of Maulana Abdul Aziz v. The State 2009 SCMR 1210, Syed Amanullah Shah v. The State PLD 1996 Supreme Court 241, Mushtaq Hussain v. The State 2009 MLD 27, Kamran alias Kami v. The State 2009 YLR 114 Muhammad Walayat v. Zafar Ullah and 2 others 2009 PCr.LJ 1442, Ghulam Mubashar v. The State 2008 MLD 531, Inam Abbas v. The state 2007 YLR 1315, Omed Ali and another v. The State 2007 YLR 921, Muhammad Saleem v. The State 2007 YLR 1551, Imran Sikandar v. The State 2007 PCr.LJ 1497.

8. Admittedly trial Court has wrongly observed in the order that accused named in the F.I.P. though he was not named in the F.I.R. but he is the person, who caught nold the deceased, his brother fired upon the deceased at the instigation of his father Abdul Sattar, resultantly, one innocent person Ashraf Agha lost his life while Abdul Sattar father of the applicant and main accused Muhammad Ashraf, brother of the applicant are still absconders. The case is fresh, still it has not been proceeded. Facts and circumstances of the case cited by learned counsel for the applicant are quite different to the facts and circumstances of the present case. In the similar circumstances, bail is refused by Hon'ble Supreme Court in the case of Muhammad Arshad versus The State 2006 SCMR 966.

9. For the foregoing reasons, I find no merits in the bail application, therefore, bail application is dismissed.

H.B.T./M-127/K Bail refused.