IN THE HIGH COURT OF SINDH CIRCUIT COURT LARKANA
(1) Criminal Bail Application No. S-421 of 2017
(2) Criminal Bail Application No. S-435 of 2017
Applicants: 1) Shaman Sethar through Mr. Athar Abbas Solangi, Advocate.
2) Muhammad Ibrahim @ Ibrahim Panhwar through Mr. Azhar Hussain Abbasi, Advocate.
Complainant: Behram Ali Jafferi through Mr.Saeed Ahmed Bijarani & Mr.Shahbaz Ali Brohi, Advocate(s)
State: Through Mr. Sharafuddin Kanher A.P.G.
Date of hearing: 26.03.2018.
Date of Order: 26.03.2018.
O R D E R
AMJAD ALI SAHITO-J:-This single order carries disposal of two post-arrest bail applications, filed separately by the applicants/accused named above which are outcome of one and same FIR bearing Crime No.128 of 2016 registered at Police Station, Khanpur, District Shikarpur, for offence under section 302, 34 PPC.
2. Brief facts of the prosecution case as per F.I.R are that on 02.12.2016, at 1900 hours, complainant Behram Ali Jafferi lodged FIR with Police Station, Khanpur, in which he mentioned that in the year 2014, a dispute had taken place of complainant party with Panhwar community in that case, his brother Nazar Muhammad was challaned. On 01.12.2016, at evening time, one Shaman Sethar had come to them, whereupon the complainant along-with his uncles Nek Muhammad, Jamaluddin and Ghulam Qadir came out from their house and met with said Shaman Sethar, who disclosed his uncle Nek Muhammad that his tractor driver is feeling un-well and some work at land is yet to be completed and he asked Nek Muhammad to complete his work by driving tractor. Then his uncle went with Shaman while they returned to their home. At about 08.00 p.m, Shaman Sethar informed the complainant through cell phone that his uncle Nek Muhammad has become unconscious during course of driving tractor, on receipt of such information, the complainant along-with his witnesses proceeded to the land of Aijaz Shah, where saw on the light of torch that Shaman Sethar was not present and his uncle Nek Muhammad was lying on the ground and they found rope marks around his neck and one injury on his left temporal region, was bleeding and he was dead, one FIAT tractor was found parked nearby him and some footprint marks were also available. The complainant then brought dead body to Shikarpur hospital where postmortem of dead body was conducted. After burial ceremony, complainant came at police station and lodged report, wherein he further alleged that they secretly came to know that Shaman Sethar, Ibrahim, Goro, Bhooral @ Bhoro and Taj Muhammad in furtherance of their common intention committed murder of his uncle Nek Muhammad.
3. During course of investigation, present
applicants/accused Shaman Sethar and Muhammad Ibrahim Panhwar including
co-accused Bhooro alias Bhooral Panhwar were arrested by the police in this
case and were released u/s.497 Cr.PC finding them to be innocent during course
of investigation by placing such report under “A” class before the concerned
Magistrate. Thereafter, on 28.12.2016, complainant moved an application under
section 22-A (6) Cr.PC before the Court of learned
Sessions Judge/Ex-Officio Justice of Peace, Shikarpur, for registration of FIR against
the present applicants/accused including co-accused, where it was disposed of
vide order dated 04.01.2017, directing the investigation officer ASI Rustam Ali
to record further statement of the complainant and produce eye-witnesses before
the concerned Magistrate for recording their statements under section 164 Cr.PC.
Subsequently, 164 Cr.PC statements of witnesses Jamaluddin and Ghulam Qadir were
recorded on 13.01.2017. The investigation officer after completing all formalities
submitted the report under section 173 Cr.PC before the concerned Magistrate under
“B” class, which was not agreed and the cognizance of said offence was taken.
4. Mr.Athar Abbas Solangi & Mr.Azhar Hussain Abbasi, learned counsels for both the applicants/accused contended that it is an unseen/un-witnessed incident in that no incriminating article whatsoever has been recovered from any of the accused; that the FIR is delayed without furnishing any plausible explanation; that the applicants/accused have been falsely implicated in the case on the basis of enmity as the FIR bearing Crime No.19 of 2014 was lodged against brother of the complainant namely Nazar Muhammad and uncle Wahid Bux by the applicant’s side and on the basis of such previous enmity, the whole family was roped in this case falsely; that further statement of the complainant was recorded, which has lost its sanctity in the eye of law; that 164 Cr.PC statements of the witnesses recorded with inordinate delay also reflects consultation; that there is no material available with the prosecution to connect the present applicants/accused with the commission of alleged offence and lastly prayed for grant of bail to the present applicants/accused. By contending so, they relied upon case of Aziz V. the State (2016 SCMR 1792), (2).Umer Hayat and others V. the State (1997 SCMR 1076), (3).Abid Mehmood V. the State (2017 SCMR 728), (4).Zaigham Ashraf V. the State (2016 SCMR 18), (5).Allah Dita V. the State (2012 SCMR 184), (6).Tahir Abbas V. the State (2003 SCMR 426), and (7).Nasir V. the State (2017 SCMR-130).
5. Mr. Saeed Ahmed Bijarani & Mr.Shahbaz Ali Brohi learned counsels for the complainant on the other hand argued that all the accused have been nominated in the FIR with their names and parentage on the basis of last seen evidence; that all the witnesses have implicated the present applicants/accused in their 164 Cr.PC statements; that the delay in lodging of the FIR has properly been explained by the complainant in his FIR, in these circumstances, the present applicants/accused are not entitled for concession of bail. In support of their contentions, they placed their reliance upon case of Muhammad Abbasi vs. the State(2011 SCMR-1606) and an unreported case law in Criminal Petition No.73-K/2017 (Abdul Bari vs. the State).
6. Mr. Sharafuddin Kanher, learned A.P.G supported the arguments advanced by learned counsels for the complainant and prayed for dismissal of bail applications.
7. I have heard the learned counsels for the parties at length and perused the record.
8. It has borne out from the record that the FIR is delayed for 21 hours, for which no plausible explanation has been furnished by the complainant. Further, the complainant has not disclosed the source of information as to how he came to know that the present applicants/accused committed murder of deceased Nek Muhammad, when the incident is unseen/un-witnessed. Furthermore, the FIR and further statement of the complainant are contradictory to each other, which requires determination at the trial that which of the version of the complainant is correct one. Moreover, none of the witnesses cited in the FIR have implicated the present applicants/accused during course of investigation to connect them with commission of alleged offence prior to filing of an application u/s 22-A(6) Cr.PC by the complainant before the learned Sessions Judge/Ex-Officio Justice of Shikarpur and that 164 Cr.PC statements of the witnesses have been recorded with delay of more than 40 days after registration of the FIR. The delay in recording their statements has not been explained plausibly and this would be an important factor which is likely to give rise to an interference that second version was introduced by the prosecution after deliberation and consultation. In this context, the reliance is made upon case of Noor Muhammad vs. The State (2008 SCMR-1556), which is as under;-
6.-- that FIR is the document which is entered into book maintained at the police station at the complaint of informant and brings the law into motion whereby police starts investigation of the case under section 156, Cr.PC. Any statement of further statement of first informant recorded during investigation by police would neither be equipped with first information report nor read as part of it.
9. The case law relied upon by learned counsels for the complainant is on distinguishable facts and circumstances of the case in hand.
10. For what has been discussed above and taking guidance from the above referred case law, the case of applicants/accused becomes one of further enquiry as covered by Sub Section (2) of Section 497 Cr.PC. Accordingly, the instant bail applications are allowed and applicants/accused namely Shaman Sethar and Muhammad Ibrahim alias Ibrahim Panhwar are admitted to bail, subject to their furnishing solvent surety in the sum of Rs.500,000/- (Five hundred thousand rupees) each with P.R bonds in the like amount to the satisfaction of learned trial Court.
J U D G E
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