Syed GUL Versus State

ORDER

ABDUL HAMEED BALOCH, J .---Through this order I intend to dispose of above titled application filed by the applicant for his release on bail in case FIR No. 12 of 2020, under sections 302, 337-ADF, 147, 148, 149, P.P.C., Levies Thana Murgha Kibzai District Zhob, registered on 26th July, 2020.

2. Concise facts of the case are that on 26th July, 2020, case FIR No. 12 of 2020, under above mentioned sections was registered with Levies Thana Murgha Kibzai District Zhob on the report of Abdul Bayan stating therein that on the said date at about 3:30 p.m., the complainant along with is brother Roz-ud-Din and one Dawood were present on their property at Soi Wala, where applicant Syed Gul along with accused Karam Khan, Abdul Haq, Muhammad Shah and Roziullah duly armed assaulted complainant and Dawood due to which they became injured, while applicant Syed Gul made firing on Roz-ud-Din, due to which he became seriously injured and succumbed to the injuries on his way to hospital. With these averments FIR was chalked.

3. The applicant/accused and co-accused were arrested in the instant case and subjected to investigation, whereafter; challan of the case was submitted to the court of Sessions Judge, Zhob. The applicant/accused moved application for grant of bail before the trial court which was rejected on 23rd December, 2020; hence the applicant/ accused is before this court.

4. The learned counsel for the applicant contended that the applicant has falsely been implicated in the case. As per medico legal certificate the injuries were old one meaning thereby that the medical evidence negated the ocular evidence. The FIR was registered with delay without any plausible explanation. The investigation has been completed and applicant is no more required for further investigation. The detention of the applicant is meant to curtail the liberty of a citizen. He placed reliance on Haday Khan v. The State 2019 PCr.LJ Note 110.

5. On the other hand the learned counsel for the complainant stated that the applicant is nominated in the promptly lodged FIR with specific role of firing on deceased. Mere completion of investigation is no ground to grant bail to the applicant. The applicant had committed murder of an innocent person. The offence is non-bailable.

6. Heard and perused the record. It transpires that the applicant is nominated in the FIR with specific role of firing on deceased. The ocular witnesses had fully implicated the applicant in the commission of offence. The medico legal certificate confirmed the unnatural death of the deceased due to fire arm. The presence of the ocular witnesses at the time of occurrence with justification is established and their evidence is straight forward. There is no reason to disbelieve the statements of ocular witnesses. Reliance is placed on Suleman v. The State 2005 YLR 1979 [Karachi]. It was held therein:

"Indeed in certain cases bails are being granted by the superior Courts on the basis of affidavits of the eye-witnesses but only in those cases where all the eye-witnesses have exonerated the accused from commission of the offence. Bail was declined to the accused by the apex Court in the case of Naseer Ahmed v. The State PLD 1997 SC 347, where all the witnesses and Mashirs had not filed their affidavits hence case-law cited by the learned counsel for the applicant is distinguishable. Furthermore, plea of bail in view of the affidavits of two eye-witnesses has been urged for the first time before this Court and rule of propriety requires that all such pleas, as available, should be raised before the Court of the first instance.

In these circumstances, I do not feel inclined to extend the concession of bail to the applicant who has been directly nominated in the FIR with specific role of causing death after committing lurking house trespass by night in the house of complainant in order to abduct a woman in presence of all the inmates of the house. This bail application is therefore, dismissed."

7. So far as the argument of learned counsel for the applicant in regard of rule of consistency is concerned. Though this court granted post arrest to other nominated accused, but the role of the applicant/accused is different to other accused and is not at par with the co-accused. The role of firing on deceased has been assigned to the applicant. The rule of consistency does not apply to the case of the applicant. Reliance is placed on the case Ghulam Abbas v. The State 2020 SCMR 1198, wherein it was held:

"3. Acquittal of co-accused, initially arrayed as unknown, has not been received as a valid ground for petitioner's release on bail, both by the Court of Session as well as the High Court, a view found by us as unexceptionable. Similarly, petitioner's advanced age with health, statedly frail, albeit with no specific disorder cannot extenuate abscondence of almost 16 years having regard to the fatal role assigned to him. Statements of the witnesses including an injured supported by medical evidence constitute "reasonable grounds" within the contemplation of section 497 of the Code of Criminal Procedure 1898, aggravated by petitioner's absence going on for an age, insurmountably stand in impediment to his release on bail, a concession discretionary in nature. View taken by the High Court, being within the bounds of law, does not call for interference. Petition fails. Leave declined."

The case law cited by the learned counsel for the applicant is distinguished.

In view of the above the bail application is dismissed. The observations made hereinabove are tentative in nature and same shall not influence merits of the case at the trial.

JK/71/Bal. Bail declined.