IN THE HIGH COURT OF SINDH CIRCUIT COURT LARKANA

Cr. Bail Application No. S-591 of 2017

Date of hearing : 12.6.2017.

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

Mr. Aijaz Mustafa Samtio, DDPP for the State.

Mr. Saeed Ahmed Bijarani, Advocate for the Complainant.

O R D E R.

ADNAN-UL-KARIM MEMON, J: The Applicant namely Abdul Bari, son of Muhammad Khan Bangulani is seeking his release on bail in F.I.R. bearing No.217/2016 for offences U/S 302, 506/2, 148, 149 P.P.C. of P.S. Kandhkot.

2. Facts of the prosecution case are that on 11.11.2016 complainant namely Muneer Ahmed Bangulani lodged above F.I.R. alleging therein that on 10.11.2016 he along with his brother/Mansoor Ahmed, uncle/Muhammad Sharif and nephew/Majid Ali, aged about 18 years were sitting in the house situated near Mitha Chowk, Kandhkot. That at about 01:00 p.m. five persons came. One person’s face was covered while the faces of other four persons were uncovered. The accused with covered face pointed to other accused to kill Majid Ali. It is alleged that two accused persons took out pistols from folds of their shalwars. Accused namely Tagial took out pistol whereas other 2 accused persons took out knife and dagger respectively. Accused with pistol pointed weapon on complainant and P.Ws and threatened them to remain silent, whereas, the accused with dagger and knife started giving blows to Majid Ali, who fell down. Thereafter all the accused persons escaped from the place of incident. It is further stated that complainant and P.Ws saw that Majid Ali died on the spot and complainant after completing usual formalities lodged the F.I.R.. During the course of investigation, IO secured one dagger and knife respectively and collected bloodstain dust from the place of incident. On 11.11.2016, IO recorded statements of P.Ws namely Muhammad Sharif and Manzoor Ahmed under Section 161 Cr. P. C. and further statement of complainant namely Muneer Ahmed on 12.11.2016. Complainant disclosed in further statement the names of accused persons Tagial, Abdul Waheed and Asad Ali with pistols, Sajjad Ali with dagger and Abdul Bari with knife. Accused Sajjad Ali, Abdul Waheed, Abdul Bari and Asad Ali were arrested on 15.11.2016 whereas accused Tagial was arrested on 22.11.2016. The Investigating Officer submitted Charge Sheet under Section 173 Cr.PC. before the learned Trial Court on 26.11.2016 showing accused Abdul Waheed, Abdul Bari and Asad Ali in column No.2. The learned Magistrate did not agree with the above mentioned Charge Sheet and opined that P.Ws have nominated all accused persons with their respective roles, therefore, let off accused persons were directed to face the trial. The Applicant moved Cr. Bail Application bearing No.395 of 2016 before the learned Sessions Judge, Kashmore at Kandhkot, who vide order dated 30.11.2016 allowed bail to accused namely Abdul Waheed, whereas, Bail Application of Applicant namely Abdul Bari was dismissed on the ground that specific role is attributed to him by the P.Ws in 161, Cr.P.C. statements.

3. Mr. Habibullah G. Ghouri, learned counsel for the Applicant has argued that name of Applicant does not transpire in the F.I.R. and he is nominated by the Complainant in further statement which was recorded after delay of two days resulting in nullifying the authenticity of the version of Complainant. He next contended that co-accused namely Asad Ali and Abdul Waheed have been granted bail by the learned Trial Court, therefore, the rule of consistency demands that Applicant may be given the similar treatment by granting him the same relief of bail. He next contended that Investigating Officer has let off the applicant in subject crime by placing his name in column No. 2 on the basis of cogent reasons. Thus, case requires further enquiry into the guilt of Applicant. He added that main accused namely Sajjad Ali Bangulani in his confessional statement before the learned Magistrate has excluded the other accused persons from the charge, hence, the Applicant is entitled to concession of bail. He next asserted that Complainant has improved his case by giving further statement after delay of two days. Per learned counsel, this is a case of two versions, therefore, the benefit of the same should go in favour of the accused. He next added that prosecution has recorded statements of independent witnesses who have deposed before the police that at the time of incident Applicant was not present because he was with them in their drawing room. He further asserted that CDR also supports the version of the Applicant which can be considered by this Court at the bail stage. Per learned counsel, Complainant has improved his story after due consultation in further statement by naming the Applicant with specific role which has casted serious doubt on the prosecution case. He further added that this is a case of two versions of the prosecution, and at bail stage, it cannot be ascertained as to which version is true. He further contended that Applicant is falsely involved by the complainant due to previous enmity. He next contended that no recovery has been affected from the possession of Applicant during the course of investigation. Thus, case requires further inquiry. He has placed reliance on the case law reported as Tariq Bashir and 5 others V. The State (PLD 1995 Supreme Court 34).

4. Mr. Saeed Ahmed Bijarani, learned counsel for Complainant has contended that P.Ws have fully supported the case of prosecution and there are no two versions of the Complainant. He further contended that Complainant has specifically named the applicant in his further statement. He next contended that role of present Applicant is very specific that he caused knife blows to deceased Majid Ali. Therefore, Applicant is not entitled to grant of bail. He further contended that Applicant is nominated in the F.I.R. and P.Ws have also mentioned name of Applicant in their 161 Cr.P.C statements to be the same accused person who gave knife blows to deceased Majid Ali causing his unnatural death. He next contended that medical evidence supports the case of prosecution as police recovered crime weapon from co-accused namely Sajjad who has already confessed his guilt under Section 164 Cr. P. C. before learned Judicial Magistrate. He next contended that Applicant as well as the co-accused namely Sajjad actively participated to commit murder of Majid Ali. He next contended that prosecution has collected sufficient incriminating evidence against the Applicant and if the bail is granted, the applicant will continue to undertake the same criminal activities which will cause harm to the public at large. He next contended that prosecution case is fully supported by the statements of the witnesses hence the Applicant is not entitled to bail.

5. Mr. Aijaz Mustafa Samtio, learned DDPP for the State has adopted the arguments of learned counsel for the complainant.

6. I have heard learned counsel for the Applicant, learned DDPP for the State, learned counsel for the Complainant, and perused the material available on record and case law cited at the Bar.

7. I am conscious of the fact that while deciding a bail application this court has to consider the allegations made in the FIR, statements recorded under Section 161 Cr.P.C., other incriminating material against accused, nature and gravity of charge and pleas raised by the accused.

8. Perusal of record shows that apparently, applicant has been charged to have actively participated in the alleged crime by stabbing deceased Majid Ali with knife. Post Mortem Report supports the prosecution case. The witnesses have fully supported the case of Complainant who did not seem to have any ostensible reason to falsely implicate the Applicant in a case of murder of Majid Ali, nephew of complainant. Case of Applicant is also hit by prohibition contained in section 497(1) Cr.P.C. So far as the plea taken by the learned counsel that Applicant was initially let of and his name was placed in Colum No.2 of the charge sheet submitted under section 173 Cr.P.C., suffice it to say that such report was not approved by the concerned Judicial Magistrate vide order dated 26.11.2016. Therefore, I am of the tentative view that, at this juncture such version of the applicant cannot be considered.

9. Reverting to the plea of enmity taken by learned counsel for the Applicant, suffice it to say that it cuts both way, it may be a cause for the crime as well implication. At bail stage, no benefit can be extended to the Applicant. I am clear in my mind on the point that a factual controversy which cannot be evaluated at the bail stage in the light of well settled principle of law that tentative assessment of the record is to be made at bail stage. The offences fall under section 302, 148, 149 P.P.C which are punishable to death or life imprisonment. So far as the ground taken by the learned counsel for the applicant that co-accused Abdul Waheed has been granted bail by the learned trial court, I am of the humble opinion that the impugned order of learned Sessions Judge, Larkana dated 30.11.2016; declining bail to the Applicant is well reasoned. Therefore at this juncture, there are no reasonable grounds to believe that the applicant is not involved in the alleged offence.

10. The case law cited by the learned counsel for the Applicant is distinguishable from the facts and circumstances of the case in hand.

11. In view of the above facts and circumstances, I am of the opinion that the Applicant/Accused has not made out a case for grant of bail at this stage. Accordingly, the instant bail application is dismissed. However, learned Trial Court is directed to record evidence of material witnesses within a period of three months where-after the applicant will be at liberty to move fresh bail application before learned Trial Court, on fresh ground, if he is advised so.

12. The above findings are tentative in nature which shall not prejudice the case of either party at the trial.

13. These are the reasons of short order dated 12.6.2017.

JUDGE

S.Ashfaq