Ali Hussain Shah vs State etc.

Crl. Misc.No. 12719-B of 2013

Ali Husnain Shah The State etc.

08.11.2013 Ch. Babar Waheed, Advocate for the petitioner. Ch. Muhammad Jahangir, DPG and Muhammad Irshad, SI along with record for the State. Mr. Aurang Zaib Marl, Advocate for the complainant The petitioner seeks post-arrest bail in case FIR No.236/2011 dated 16.04.2011 under section 302 PPC Police Station Saddar Gujrat, District Gujrat.

2.Briefly stated the prosecution version as set forth in the FIR is that on 16.04.2011 at about 2.00 p.m, the petitioner, while armed with pistol 30-bore came at the shop of his younger brother and started hot talk with him. The complainant tried to settle the matter but the petitioner fired with his pistol, which hit upon the upper side of left eye and then petitioner fled away by making aerial firing. The injured died subsequently in the way to Hospital Hence, this FIR.

3.The learned counsel for the petitioner has contended that the petitioner has been roped in the false case with malice; that during the course of investigation, the I.O has come to the conclusion that fire was hit to the deceased accidentally and it is a case of ‘Qatl-i-Khata’ and not ‘Qatl-i-Amd’ so the case against the petitioner requires further probe and inquiry; that nothing has been recovered from the petitioner and if any that is fake and fictitious; that nothing incriminating material is available on the record to connect the petitioner with commission of the offence hence, the

petitioner be released on bail; that the petitioner is previously non convict and non record holder and that the petitioner is behind the bars since his arrest and his person is no more required for further investigation.

4.The learned DPG and the learned counsel for the complainant have vehemently opposed the petition. It is contended that during the investigation the petitioner was found guilty; that the PWs have fully corroborated the prosecution version in their statements recorded under section 161 Cr.P.C; that during investigation, the recovery of pistol has been effected from the petitioner and that the petitioner remained absconder so he is not entitled to the concession of post arrest bail.

5.Arguments heard and record perused.

6.The occurrence took place at 2.00 p.m and was promptly reported to the police. It is a broad day light occurrence. The prosecution witnesses in their statements recorded under section 161 Cr.P.C have fully supported the prosecution version regarding causing of injury on the left side of frontal region of head of the deceased, which is shown as injury No.1 in the postmortem report and was declared ante mortem and fatal. The weapon of offence has been recovered from the petitioner. As to the plea of learned counsel for the petitioner that during investigation, I.O come to the conclusion that the case of the petitioner falls under section 319 PPC and not under section 302 PPC, prima facie, it seems that in order to favour petitioner/accused, the I.O has introduced second version without any cogent reason and by over looking the fact that the petitioner/accused made three fires instead of one fire, therefore, the opinion of the police regarding act of the petitioner/accused falls under ‘Qatl-i-Khata’ instead of ‘Qatl-i-Amd’ is

immaterial. It is pertinent to mention here that the complainant has filed private complaint expressing dissatisfaction over investigation conducted by the Investigating Officer. Perusal of the interim order sheet reveals that the charge in private complaint against the accused/petitioner was framed on 17.04.2012 under section 302 PPC by the learned trial court but the trial is being delayed by the petitioner/accused due to non availability of defence counsel, when witnesses were present in the Court. Prima facie, sufficient material is available on the record to connect the petitioner with commission of the offence falling within prohibitory clause of section 497 Cr.P.C.

7.In view of the above facts and circumstances, I have not been persuaded to extend him the relief of bail. The bail petition is without merits and the same is hereby dismissed.

(Aalia Neelum) Judge

Approved for reporting.

Judge.

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