ORDER SHEET

IN THE HIGH COURT OF SINDH, CIRCUIT COURT, LARKANA.

1^st Crl. Bail Appln. No.S-467  of  2014.

DATE OF HEARING

ORDER WITH SIGNATURE OF HON’BLE JUDGE.

06.10.2015.

For Hearing.

Mr. Ali Nawaz Ghanghro, advocate for the applicants.

Mr. Faiz Muhammad Larik, advocate for complainant.

Mr. Shahzado Saleem Nahiyoon, Asst. Prosecutor General.

O R D E R.

SALAHUDDIN PANHWAR, J.-               Upon refusal of pre-arrest bail by the learned II-Additional Sessions Judge, Jacobabad through order dated 17.9.2014, applicants Muhammad Sadique alias Sadique, Muhammad Usman and Muhammad  Umar alias Umar, all by caste Bangulani, have approached this Court for grant of pre-arrest bail in Crime No.33/2014 registered at Police Station Bahu Khoso, District Jacobabad, under Sections 302, 148, 149, PPC.

            2.         Briefly, the facts are that on 13.08.2014, SIP Ali Muhammad Odho, SHO P.S Bahoo Khoso during patrolling received spy information that Mst.Gohar Khatoon wife of Muhammad Usman was shot dead by accused Sadique, Muhammad Usman, Umar and two unidentified persons on the allegation of “Kari”; on receipt thereof they went to the place, indicated by spy, and when reached near the house of accused Sadique, they noticed five persons armed with guns coming out from the said house, who however succeeded in making their escape good in the nearby paddy crops.  The police identified those persons to be Sadique, Muhammad Usman and Umar, armed with guns, and two unidentified persons.  Police entered the house, saw the dead body of deceased Mst. Gohar Khatoon and found gunshot injuries on left side of her breast; prepared mashirnama and conducted other usual formalities; sent dead body to hospital through PC Shahal Khan for postmortem and then SIP Ali Muhammad Odho lodged F.I.R.

            3.         Learned Counsel for the applicants contended that bare reading of the F.I.R reflects that the alleged incident is totally unwitnessed, as nobody is shown to have seen any of the applicants or any one else making fire upon the deceased; even the complainant, per F.I.R, is not an eyewitness of the incident.  He further contended that on the night of incident some unknown thieves entered into the house for committing robbery and killed Mst. Gohar Khatoon by making fire upon her.  It is further contended that there is conflict in between the ocular version and the medical evidence.  It was next contended that the dead body of deceased Mst. Gohar Khatoon was identified by her two brothers, namely, Amir Bux and Yaseen, but none of them has lodged F.I.R, even they have not been cited as prosecution witnesses.  It is also contended that five persons have been arraigned in the instant case though there is single gunshot injury on the person of deceased.  Lastly, it was contended that the case against the applicants requires further enquiry.

            4.         Learned A.P.G. opposed the bail application and contended that deceased Mst. Gohar Khatoon was wife of applicant Muhammad Usman, whereas applicant Muhammad Sadique was her brother-in-law (brother of applicant Muhammad Usman), whereas applicant Muhammad Umar is their cousin, but none of them has lodged any F.I.R or complaint regarding murder of Mst. Gohar Khatoon, who was done to death in the house of her husband i.e. applicant Muhammad Usman, which raises fingers towards them.

            5.         Heard learned Counsel for the parties and perused the record.

            6.         It is the case of prosecution that Mst. Gohar Khatoon was killed on the allegation of “Kari” by her husband Muhammad Usman, applicants Muhammad Sadique and Muhammad Umar and two unknown persons.  Since, the deeper appreciation of the evidence at bail stage is not permissible hence at such stage the prosecution has to establish existence of reasonable grounds to believe link of accused with commission of offence but only through permissible tentative assessment of the material.  Instant incident, prima facie appears to be one of circumstantial evidence wherein the place of incident is the house of the applicants’ where normally no stranger can cause appearance without their permission and consent. In such eventuality, the link or least knowledge of incident of house-inmate(s) about incident is always to existing and onus is upon the house-inmates to establish their prima facie innocence. In peculiar facts of incident the story / justification, furnished by applicants, that some unknown thieves entered into the house of applicant Muhammad Usman for committing theft wherein deceased Mst. Gohar Khatoon was done to death by making fire upon her, is not appealing as after the murder of Mst. Gohar Khatoon, wife of applicant Muhammad Usman in his own house, his conduct of not reporting the matter to police is itself a strong circumstance tending to connect him with the commission of the offence.  Applicants Muhammad Sadique alias Sadique and Muhammad Umar alias Umar are brother and cousin respectively of applicant Muhammad Usman, who can have access easily and were claimed to be seen by complainant party (police) while coming out from the place of incident also provide substance to link them.  The prosecution version to the extent of death of deceased by means of gunshot is supported by the medical evidence. The argument of learned Counsel for the applicants that medical evidence contradicts the ocular evidence is without any weight at this stage, as it would amount to deeper appreciation of evidence, which is not permissible at bail stage.  No malafide or ulterior motive is shown to indicate false implication of the applicants. To earn the extraordinary relief of pre-arrest bail the accused must not only show existence of reasonable grounds leading to a belief that he was not guilty of the offence alleged against him and that there were, in fact, sufficient grounds warranting further inquiry into his guilt but he is also required to show that his arrest is being sought for ulterior motive, particularly on the part of the police; to cause irreparable humiliation to him and to disgrace and dishonour him, as held in the case of Rana Muhammad Arshad v. Muhammad Rafique & another (PLD 2009 SC 427). In the instant case the accused not only failed in bringing their case within scope of Section 497(2) of the Code but also failed to establish any malafide on part of the SHO (complainant). Such failure on part of the applicants / accused would disentitle them from earning concession of extraordinary relief of pre-arrest bail.

            7.         In view of the above-mentioned facts, circumstances and reasons, I am of the considered opinion that the applicants have failed to make out a case for grant of extraordinary concession of pre-arrest bail, therefore, instant bail application is dismissed.

                                                                                                                        JUDGE

M.Y. Panhwar/**