ORDER SHEET

IN THE HIGH COURT OF SINDH CIRCUIT COURT LARKANA

1st Crl. Bail Application No. S- 569     of 2017

 

DATE

ORDER WITH SIGNATURE OF JUDGE

 

1.For orders on office objection ‘A’

2.For Hearing of Bail Application

09.04.2018

Mr. Habibullah G. Ghouri, Advocate for the applicants.

Mr. Irfan Badar Abbasi, Advocate for the complainant.

Mr. Sharafuddin Kanhar, APG for the State.

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Amjad Ali Sahito, J.-  The applicants Wazir alias Dadan and Qurban are booked in Crime No.28 of 2017 for offence under section 302, 452, 337-H(2), 504, 147, 148, 149, PPC registered at Police Station Boriri and their pre-arrest bail plea was declined by the learned Sessions Judge, Dadu vide order dated 02.11.2017.

2.         Briefly, the prosecution case disclosed by complainant Mst.Sihat Khatoon wife of Shahan Khoso is that on 04.10.2017 at 10.30 a.m. she reported the incident to Police Station Boriri stating that on 02.10.2017, at evening time, her husband Shahan Khoso, exchanged harsh words and abused to Dildar son of Wazir alias Dadan Khoso and others, on the issue of catching fish, to which Dildar Khoso and others became annoyed. On 03.10.2017 at 7.00 a.m., the complainant along with her husband Shahan aged about 49/50 years, nephew Misri was available in the house when applicants Wazir alias Dadan armed with repeater, Qurban armed with DBBL gun along with other accused namely Dildar armed with mouser, Bilawal armed with pistol and Lashkari armed with SBBL gun entered into the house. On their arrival, they abused and said to Shahan that since about two days before he has insulted Dildar over fishing, therefore, he will not be spared today. Saying so, accused Dildar directly fired upon Shahan with an intention to commit his murder which hit him in his left leg, who raising cry fell down on the ground while remaining accused persons fired in the air. Thereafter all the accused persons decamped from the scene of offence. The complainant and the P.Ws found the aforementioned injury on the person of Shahan. He was bleeding and dead. After completion of burial and funeral ceremonies, the complainant reported the incident at Police Station.

3.         Learned counsel  for the applicants contended that  the applicants have been falsely implicated in this case; that the complainant has thrown wide net to implicate entire family in this case with malafide intention and ulterior motives not to pursue the case against main accused Dildar to whom the complainant has shown the active role; that mere presence of the applicants  has been shown on the spot; no active role has been assigned against the present applicants in this case; further learned counsel has produced the case diary dated 28.02.2018  which shows that the applicants have surrendered before the trial Court and the learned trial Court is lying vacant and there is no likelihood of proceeding with the case in near future; he submitted that if the order is recalled the applicants will be arrested, they will be humiliated in the eyes of the law; he lastly prayed for confirmation of bail.

4.         On the other hand, learned counsel appearing for the complainant submits that name of the applicants are appearing in the F.I.R with specific role and there is  no malafide on the part of complainant. He prayed for recalling the order earlier passed by this Court.

5.         Learned A.P.G  supported the contentions of the learned counsel for the complainant.

6.         Heard learned counsel for the parties and perused the record with their assistance. Admittedly, allegation against the applicants is that they were armed with respective weapons at the place of incident and abused the complainant party but no overt act particularly over the deceased is leveled against them nor have caused any injury to the prosecution witnesses. The F.I.R is delayed for about one day, no plausible explanation has been given in this respect. As per guidelines provided by the Hon’ble Supreme Court while granting pre-arrest bail, there must be malafide or ulterior motives on the part of complainant or police. Although for grant of pre-arrest bail one of the pre-conditions is that the accused person has to show that his arrest is intended by the prosecution out of mala fide and for ulterior consideration. At pre-arrest bail stage, it is difficult to prove the element of mala fide by the accused through positive/solid evidence/materials and the same is to be deduced and inferred from the facts and circumstances of the case and if some events-hints to that effect are available, the same would validly constitute the element of mala fide. In this case, it appears that complainant has thrown wide net to involve as many as persons. All those aspects if are combindly taken, may constitute element of mala fide, if declined, would be a matter of technicality alone while on the other hand they are likely to be humiliated and disgraced due to arrest at the hands of the local police.

7.         In view of the above, the applicants have successfully made out case for further enquiry in terms of Subsection (2) of Section 497 Cr.P.C. Accordingly, pre-arrest bail granted to the applicants vide order dated 23.11.2018  is hereby confirmed on the same terms and conditions.

 8.      Needless to mention here that the assertions made hereinabove are tentative in nature and would not influence the trial Court while deciding the case of the applicants on merits.

 

                                                                                                            Judge

Abid H. Qazi/**