ORDER SHEET

IN THE HIGH COURT OF SINDH, BENCH AT SUKKUR

Cr. Bail Appln. No. S – 344 of 2018

DATE ORDER WITH SIGNATURE OF JUDGE

For hearing of bail application

12.12.2018

Mr. Ali Gohar Shar Advocate for the Applicant

Mr. Aftab Ahmed Shar, Additional Prosecutor General for the State

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Amjad Ali Sahito, J- Through this application, the applicant/accused Muhammad Sachal Kandhro, has sought post-arrest bail in Crime No.94/2017 registered at Police Station, Tando Masti Khan, District Khairpur for offences punishable under Sections 302, 147, 148 and 149 PPC. The bail plea of the applicant/accused was declined by the Court of learned 1st Additional Sessions Judge Khairpur vide order dated 23.04.2018, hence the applicant/accused has filed instant bail application.

2. The facts as per FIR registered on 24.09.2017 by complainant Zahid Mustafa Jokhio are that his brother Jamshed Mustafa alias Imran Kandhro aged about 37 years was doing the business. On 19.09.2017, he along with his brother Jamshed Mustafa, cousin Liaquat Ali and Tarique Nawaz went to Kolab Jeeal on their motorcycles for some work, when at about 10:00 p.m, they reached at Sim Nali, they saw on the head lights of motorcycles and identified accused Sahib Khan armed with T.T.Pistol, Manthar armed with Pistol, Ali Gul alias Kamboh with hatchet, Imtiaz with hatchet, Bashir with kalashnikov and three unknown accused having lathies, hatchets and kalashnikov intercepted and stopped them forcibly. Out of them, accused alighted Jamshed Mustafa from motorcycle and then accused Sahib Khan and Manthar made straight fires upon Jamshed Mustafa with intention to commit his murder which hit him, whereas accused Imtiaz and Ali Gul alias Kamboh caused hatchet blows to Jamshed Mustafa, who fell down while crying and died at the spot while remaining accused persons made aerial firing and then all the accused persons escaped away. Thereafter complainant went to police station and lodged the FIR as stated above.

3. Learned counsel for the applicant/accused mainly contended that the applicant is innocent and has falsely been implicated in this case; that the name of the present applicant/accused is not mentioned in the FIR, whereas, he has been involved in the case only on the basis of further statement of the complainant with the allegation that he was the servant of the deceased and he had contacted with him through cellphone, hence only on the basis of CDR he has been roped in this case; that there is delay of five days in lodgment of the FIR for which no plausible explanation has been furnished by the complainant; that all the PWs are related inter se, therefore, their statements cannot be believed as trustworthy and confidence inspiring; that since the case has been challaned and the applicant/accused is no more required for the purpose of investigation. He lastly prayed for grant of bail to the applicant/accused. In support of his contentions, he has relied upon the cases of Zahid Abdul Ghani v. The State ( 2007 Y L R 323) [Lahore]; Noor Muhammad alias Noori v. The State ( 2007 Y L R 397) [Lahore); and Muhammad Irfan v. The State and others ( 2014 SCMR 1347).

4. Learned Additional Prosecutor General has vehemently opposed for grant of bail to the applicant/accused and further submits that he has acted as facilitator of the co-accused and on his cellphone calls the deceased came at the place of incident, where the co-accused committed the murder of the deceased Jamshed Mustafa alias Imran, although the name of the applicant does not find place in the FIR, but he has been named in the further statement by the complainant, which is supported by the CDR through which the applicant has called the deceased 17 times on the same date, hence the applicant/accused is not entitled for grant of bail.

5. I have heard the learned counsel for the parties, learned Additional PG for the State and have gone through the record. It is an admitted fact that the name of the present applicant/accused does not find place in the FIR nor any specific role has been attributed to him, whereas, the name of the present applicant/accused has been taken by the complainant through his further statement on the basis of CDR, which was recorded on 18.10.2017 with delay of about 29 days because on the date of incident he had called the deceased from his cellphone. In the said further statement, the complainant has stated that only he came to know that present applicant/accused was in contact with the deceased Jamshed Mustafa through his cellphone, therefore, he is also involved in the commission of the offence and the complainant has not revealed the source of information to the police nor complainant has claimed in the FIR that the present applicant/accused is facilitator of the co-accused, therefore, the role assigned against the present applicant/accused in further statement will be determined at the time of the trial when the evidence will be adduced by the prosecution. The applicant/accused is in jail, he is no more required for further investigation as the challan has already been submitted against him before the trial Court and no useful purpose would be served if the applicant/accused is kept behind the bars for indefinite period.

6. In view of above facts and circumstances, the case of the applicant/accused is one of further inquiry in terms of Sub-section (2) of Section 497 Cr.P.C. Accordingly, the applicant/accused is granted bail in the sum of Rs.3,00,000/- (Three lac) and PR bond in the like amount to the satisfaction of the trial Court.

7. The observations made above are tentative in nature and will not affect the case of either party at the trial.

Judge

ARBROHI