MUHAMMAD ASHRAF Versus State

ORDER

1. MUHAMMAD TASNIM, J.--- Applicants Muhammad Ashraf and Abdul Aziz have filed this application seeking post arrest bail who are required in F.I.R. Crime No. 27 of 2010 Police Station, Tando Masti registered for offence under sections 396, 353, 324, 148, 149, P.P.C.

2. The prosecution story is that the case was initiated on an F.I.R. lodged at the instance of SIP Long Khan Shar on behalf of State on 15-2-2010 at 1500 hours alleging therein that present applicants Ashraf having Kalashinkov and Aziz having TT pistol along with 5 unknown persons with rifles and kalashnikovs stopped the Oil Tanker on the point of weapons in order to commit robbery and due to fear of weapons the Tanker was stopped and robbed cash and mobile from the driver and cleaner Muhammad Qasim. As Muhammad Qasim resisted the accused on which the accused made direct fire upon him, which hit him and he died on the spot; hence the F.I.R. was lodged as stated above.

3. The learned counsel for the applicants submits that the F.I.R. was lodged in the matter at 1500 hours on 15-2-2010 whereas incident took place in midnight of 14-2-2010 at about 2330 hours. He further submits that seven accused namely Muhammad Ashraf, Abdul Aziz and 5 unknown have been implicated in the case. He points out that Muhammad Ashraf and Aziz are real brothers and they have been implicated due to enmity with the police. The learned counsel has argued that the incident is un-seen. No role to the applicants has been assigned. He further argued that there is delay of 15 hours in lodging of the F.I.R. which has not been explained plausibly by the prosecution. He further points out that no memo, of foot prints was prepared by the police. He further says that as per F.I.R. dead body was handed over to A.S.-I. Gada Hussain Khaskheli whereas postmortem report shows that Doctor had received the dead body in the aforesaid crime number through PC Taj Muhammad. The learned counsel has further pointed out that body was received by the Doctor on 14-2-2010 at 1155 hours whereas F.I.R. was lodged on 1500 hours on the same date. His further argument is that the statement of the Driver who had seen the occurrence has not been recorded by the police and no identification has been carried out in the matter. He has, relied upon the cases reported as Iftikhar Hussain and others v. The State (2004 SCMR 1185) and Paryal v. The State (2006 PCr.LJ 1212).

4. On the other hand the learned A.P.-G. appearing for the State has vehemently opposed the bail application and argued that there is ample material available on record, which connects the present applicants with the commission of alleged offence. He further argued that the learned trial Judge has rightly rejected the bail of the present applicants and supports the order of the learned trial Court. He submitted that an innocent person has died in the case and it is a heinous offence which falls under the Prohibitory Clause; hence the applicants do not deserve any concession of bail.

5. I have heard the arguments of the learned counsel for the applicants and learned APG appearing for the State and have gone through the record so also examined the case law cited at the bar.

6. From the perusal of the record it is an admitted position that F.I.R. was lodged after the delay of 5 hours but no plausible explanation has been put-forth by the prosecution. It is also an admitted position that no role to the applicants has been assigned as the incident is unseen. It can also be seen from the record that dead body was received by the Doctor much prior to the lodging of F.I.R. but such postmortem report carries F.I.R. number. Judgments cited by the learned counsel for applicants fully support the case in hand.

7. I am mindful of the fact that at the bail stage deeper appreciation of the evidence cannot be gone into and only bird-eye view is to be kept on the record. After examining the record I am satisfied that this is a fit case whereby further enquiry is called for in terms of section 497(2), Cr.P.C.

8. In the circumstances I allow this application and admit the applicants to bail. They shall be released on bail subject to their furnishing solvent surety in the sum of Rs. 200,000 (Rs. two lac) only each and P.R. bond in the like amount to the satisfaction of the learned trial Court.

9. H.B.T./M-143/K Bail granted.