ORDER SHEET

IN THE HIGH COURT OF SINDH, CIRCUIT COURT,

HYDERABAD.

Cr.Bail.Appl.No.S- 826  of   2012

DATE     ORDER WITH SIGNATURE OF JUDGE

27.10.2015.

Applicant/accused Ghareebo alias Ghareeb Nawaz is present on interim pre-arrest bail.

Mr. Fayaz Hussain Saabki, Advocate for applicant.

          Mr. Shahid Shaikh, A.P.G. for the State.

                   =

NAIMATULLAH PHULPOTO, J:         Applicant / accused Ghareebo alias Ghareeb Nawaz seeks pre-arrest bail in Crime No.12/2012 registered at Police Station Jamal Shah, U/Ss 302, 337-H(ii), 148, 149 PPC.

2.       Brief facts of the prosecution case as disclosed in the FIR are that on 20.05.2012 Mst. Sharifan lodged her report, alleging therein that on 15.04.2012 she alongwith her son Manthar, daughter-in-laws Mst. Suhni and Mst. Hakeeman was going to attend the marriage ceremony in Village Soomar Khan Khaskheli. At about 12-00 noon, when they reached at fish pond where it is alleged that complainant party saw accused namely (1) Mehboob Ali s/o Jan Muhammad, (2) Raja s/o Mehboob Ali and (3) Ghareebo s/o Ali Nawaz (present accused), all by caste Zardari and three unknown persons armed with deadly weapons. It is alleged that accused Mehboob Ali challenged his brother Manthar to vacate the disputed land else he would not be spared. Thereafter, it is alleged that accused Mehboob Ali, Raja and Ghareebo fired upon Manthar which hit him and he fell down, accused went away while firing in air. Complainant and her witnesses saw that deceased had expired. Complainant made to sit PWs over the dead body and went to Police Station for information. After postmortem examination, dead body was handed over to her. Complainant again went to Police Station for lodging the report against accused persons where she came to know that regarding the death of her son, FIR has already been lodged on behalf of the State by ASI Muhammad Yaqoob Keerio vide Crime No.08/2012 at Police Station Jamal Shah, U/S 302 PPC against unknown persons. Thereafter, complainant moved an application against the SHO before learned Sessions Judge, Shaheed Benazirabad for seeking direction for registration of the FIR against accused. Thereafter, aforesaid FIR was registered on the direction of learned Sessions Judge, Shaheed Benazirabad U/Ss 302, 337-H(ii), 148, 149 PPC.

3.       Applicant/accused applied for pre-arrest bail before learned Ist Additional Sessions Judge, Shaheed Benazirabad, who vide orders dated 01.09.2012 rejected the same. Thereafter, he approached this Court.

4.       Mr. Fayaz Hussain Saabki, learned advocate for applicant/accused Ghareebo alias Ghareeb Nawaz argued that there is inordinate delay in lodging of FIR for which no plausible explanation has been furnished. This is a case of two versions. It is further contended that deceased was proclaimed offender. It is also argued that complainant has filed affidavit in which she has forgiven the accused in the name of Allah. Lastly, it is argued that applicant/accused is on interim pre-arrest bail for long time and such concession has not been misused. In support of his contentions, reliance has been placed upon the cases reported as 1. Abdul Haleem Lakho v. Abdul Karim alias Karim Bux and others (2005 SCMR 1539), 2. Sajad Hussain v. The State and another (2014 YLR 1033) and 3. Abdul Rehman and 3 others v. Saeedullah and another (2010 YLR 1713).

5.       Learned A.P.G. argued that applicant/accused has been nominated in the FIR and role of effective firing has been attributed to him. He has further argued that delay in F.I.R has been explained as SHO refused to register the FIR and on the direction of learned Sessions Judge, FIR of the incident was lodged. It is also argued that there are three eye witnesses of the incident and complainant has filed affidavit in which she has forgiven the applicant/accused as the complainant is mother-in-law of the applicant/accused. Learned A.P.G. lastly argued that affidavit has been obtained with pressure by the accused. He has opposed the bail application.

6.       I have heard learned counsel for the parties and perused the relevant record.

7.       In the FIR, accused Ghareebo alias Ghareeb Nawaz, Mehboob Ali and Raja have been nominated, it is stated that they had fired upon the deceased and incident was witnessed by three eye witnesses. As regards to delay in lodging of the FIR is concerned, it is stated by complainant that SHO refused to register the FIR, then FIR was lodged on the direction of learned Sessions Judge. Contention of learned counsel for the applicant that police had registered the FIR on behalf of the State regarding the murder of deceased at the hands of unknown persons. Contentions require deeper appreciation of evidence. Obviously, there are three eye witnesses of the incident, they have implicated the accused. Ocular evidence is corroborated by medical evidence. Complainant has filed affidavit in which she has stated that she has forgiven the accused in the name of Allah, it may be mentioned here that applicant/accused is the son-in-law of complainant. Filing of such affidavit would not be sufficient ground for grant of bail. Other contentions raised by learned advocate for applicant/accused require deeper appreciation of evidence, which is not permissible at bail stage. Ingredients for grant of pre-arrest bail are also missing in this case. In the case of Riaz Ahmed v. The State (2009 SCMR 725), Honourable Supreme Court has observed as under:-

“We have heard learned counsel for the parties and have gone through the record so made available. It is not necessary for us to go into the details in respect of appearance of the petitioner or his counsel before the Special Judge, Anti-Corruption, for the reasons that High Court had also considered this case on merits as well and concluded on the basis of material as follows:-

“I have further concluded that the petitioner is specifically named in the FIR with serious allegations. Extraordinary relief of pre-arrest bail cannot be granted to such-like offenders. Learned counsel has failed to convince me that F.I.R. against him has been lodged due to the mala fides of the police or the complainant which is pre-conditions for grant of pre-arrest bail as laid down by the apex Court in the cases of Murad Khan v. Fazal Subhan PLD 1983 SC 82 and Zia-ul-Hassan v. The State PLD 1984 SC 192. Therefore, this petition is dismissed. A copy of this order be immediately dispatched to the concerned police station.”

Learned counsel for the petitioner insisted that there is mala fide on the part of the complainant therefore, the High Court, ought to have not dismissed the case but we are not inclined to entertain his arguments in view of the reason cited by the High Court which seems to be cogent and strong. Therefore, no inference is called for in the discretionary powers, exercised by the High Court.”

          Co-accused Mehboob Ali and Raja who are closely related to applicant/accused are still absconding. Prima facie, prosecution has collected sufficient material/evidence against the applicant/accused during investigation to connect him in the commission of offence, which is punishable for death or imprisonment for life. No malafide on the part of complainant Mst. Sharifan or investigation officer have been pointed out. No case for grant of pre-arrest bail is made out. Resultantly, bail before arrest application is dismissed, interim pre-arrest bail already granted to the applicant/accused is hereby recalled.

8.       Needless to mention here that observations made hereinabove are tentative in nature and the trial Court while deciding the case on merits shall not be influenced upon by said observations.

                                                                                       JUDGE

Tufail