ORDER SHEET
IN THE HIGH COURT OF SINDH, KARACHI
Criminal Bail Application No. 153 of 2017
Applicants : Nazar Muhammad and another, through
Mr. Abdul Wahab Baloch, Advocate.
Respondent : The State, through Mr. Abdullah Rajput, APG.
Complainant : Mst. Bibi Jamaati wd/o Shah Muhammad.
(present in person)
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Date of hearing : 21.03.2017
Date of order : 21.03.2017
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O R D E R
ZAFAR AHMED RAJPUT, J:- Through instant criminal bail application, applicants/accused Nazar Muhammad s/o. Fatah Muhammad and Azmat s/o. Nazar Muhammad have sought pre-arrest bail in Crime No. 514 of 2016, registered at P.S. Aziz Bhatti, Karachi under Section 302/324/34 P.P.C. Their earlier bail applications bearing No. 20 of 2017 was heard and dismissed by the learned VIIIth Additional Sessions Judge, Karachi-East, vide order dated 28.01.2017. They were admitted to ad-interim bail by this Court vide order dated 02.02.2017, now they seek confirmation of their bail.
2. Briefly stated, the facts of the case are that on 27.12.2016 at 1110 hours complainant, namely, Mst. Bibi Jamaati widow of Shah Muhammad lodged the aforesaid F.I.R. alleging therein that they have dispute over plot with applicant/accused Nazar Muhammad, who is their relative. On 09.12.2016 at about 5:00 p.m. accused Nazar Muhammad and his sons, namely, Azmat, Asif and Barkat took away her son, namely, Khan Muhammad from the door of her house in their house and started maltreating him, on which complainant alongwith her husband, namely, Shah Muhammad and son, namely, Umair entered into the house of accused persons, whereupon accused persons attacked them with lathies with intention to kill them and caused injures on the heads of complainant’s husband and sons; however, they succeeded to escape from the spot and reached police station and after obtaining letter for medical, they went to Abbasi Shaheed Hospital for treatment, whereafter they went to the house of their relatives at Mowach Goth and thereafter her both sons went to Quetta, where they received medical treatment from a private hospital. On 10.12.2016, due to injuries her husband became unwell, who was being shifted to Abbasi Shaheed Hospital; but died in the way.
3. The learned counsel for the applicants/accused has mainly contended that the accused No.1 is the brother of the complainant while accused No.2 is her nephew and they both are innocent and have falsely been implicated in this case due to malice and ulterior motive as the complainant party have evil eyes over the house of the applicants; that there is delay of about 18 days in lodging of F.I.R., for which no plausible explanation has been furnished by the complainant; that the place of incident is the house of accused persons; that the deceased was in conscious condition, when he was taken to hospital and no grievous injury was observed by the MLO on the person of deceased, hence he was discharged from the hospital after giving him first aid; that the cause of death is not mentioned in the supplementary medico-legal report; that the accused Nazar Muhammad is an old man aged about 60 years; that as per F.I.R. there was no report that blood was oozing from the body of deceased or injured; that co-accused Barkat and Asif were arrested on 30.12.2016 and blood stained dandas allegedly used in the alleged crime have been shown recovered from them; that there are general allegations against the accused persons and no specific role has been attributed to the present accused in commission of the alleged offence and the vicarious liability of accused, if any, shall be determined by the trial Court after trial; hence, the case of accused falls within the ambit of further inquiry; as such, the ad-interim bail granted to the present accused may be confirmed.
4. On the other hand, learned APG has vehemently opposed this application on the ground that accused persons are nominated in the F.I.R. who have caused Danda blows on the person of husband and sons of the complainant, while the Dandas used in the commission of offence have also been recovered from arrested accused Asif and Barkat and the witnesses in their 161 Cr.P.C. statement have fully implicated accused persons in the commission of offence. He has submitted that the husband of the complainant died unnatural death probably due to head injury caused by the accused persons; therefore, they are not entitled to the concession of bail.
5. I have considered the arguments advanced by the learned counsel for the accused and learned APG as well as perused the material available on record.
6. It appears that after the alleged incident the deceased husband and sons of the complainant were referred to Abbasi Shaheed Hospital; however, after giving first aid they were relieved from the hospital and deceased Shah Muhammad died on second day of the alleged incident. As per medico-legal report the deceased died unnatural death; however, cause of death could not be ascertained. The F.I.R. has been lodged with delay of 17 days, which has not been explained; as such, the presumption of consultation and deliberation, so also malice and ulterior motive, for lodging of F.I.R. cannot be ruled out, as admittedly, both the parties have inimical terms over the dispute of immovable property. The medical report does not disclose any grievous injury on the person of deceased. There are general allegations against the accused persons and no specific role has been attributed to any of them. Under the circumstances, the vicarious liability of accused could only be established after recording the evidence. Hence the case of accused persons fall within the ambit of further enquiry into their guilt covered under sub-section (2) of the Section 497 Cr.P.C.; therefore, the interim pre-arrest bail granted to accused is confirmed on the same terms and conditions.
7. Needless to mention here that the observations made hereinabove are tentative in nature and would not influence the trial Court while deciding the case of the applicant on merits. However, in case the accused misuse the concession of bail in any manner, the trial Court shall be at liberty to cancel the same after giving them notice, in accordance with law.
JUDGE
Athar Zai