ORDER SHEET

IN THE HIGH COURT OF SINDH BENCH AT SUKKUR

Date	Order with signature of Judge

For hearing of bail application

Present:

Mr. Justice Amjad Ali Sahito

Cr. Bail Appl No.S-587/2016

Applicant. Imdadullah son of Abdu Bakar

By caste Memon, adult, Muslim,

R/o. Near Chorigar Bazar Munshi Mohalla Khairpur Mr. Rukhsar Ahmed Junejo, Advocate for the applicant.

Cr. Bail Appl No.S-576/2016

Applicant: Muhammad Muavia son of Karamullah by caste Memon

R/o. Munshi Mohalla City Khairpur.

Mr. Irshad Husain Dharejo, Advocate for the applicant.

Cr. Bail Appl No.S-737/2017

Applicant: Amir Ali Memon son of Imdad Ali @ Imdadullah by caste

Memon R/.o. Munshi Mohalla Taluka & District Khairpur.

Mr. Rukhsar Ahmed Junejo, Advocate for applicant

Respondent: The State through Mr. Afzal Hussain Talpur, APG

Date of hearing: 03.09.2018

O R D E R

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Amjad Ali Sahito, J. By this single order, I intend to dispose of above captioned criminal bail applications arising out of same crime No. 201/2016, registered at PS ‘A’ Section Khairpur, for offences punishable u/s: 302, 114, 34 PPC.

2. Briefly, facts of the case are that on 01.08.2016, at 1500 hours, complainant Asif Ahmed Memon lodged FIR, alleging therein that he owns Kaaj over lock and Peko shop at the city and on 21.07.2016, a quarrel had taken place in between children of Abid and complainant party, for which brothery talks were fixed. On the day of the incident, complainant along with his brother Waheed Ahmed, relative Tarique Ahmed, Muhammad Yaseen were standing near the door of their house. It was about 10:00 hours, accused Abid Ali having scissor of hair cutting, Amir Ali, Imdadullah and Muhammad Muavia empty handed came there. On coming, accused Imdadullah instigated other accused to murder Waheed Ahmed. On such instigation, Amir and Muhammad Muavia caught hold to Waheed Ali from his arms, accused Abid Ali caused hair cutting scissor blows to him on lower side of his left nipple with intention to commit his murder, due to that, blood was oozing ad he fell down and became unconscious, to which complainant party raised cries which attracted neighbors and on seeing them, accused persons ran away from the spot. Thereafter complainant brought his brother Waheed Ahmed at PS and obtained a letter for treatment and went to Civil Hospital Khairpur, but his brother succumbed to the injuries and died. Complainant lodged such FIR.

3. Learned counsel for the applicants contended that applicants/accused are innocent and have been falsely involved in this case due to matrimonial affairs; that there is unexplained delay of about 5 hours in lodgment of the FIR; that allegation against the applicant Imdadullah is of instigation and allegations against the applicants Muhammad Muavia and Amir Ali are that they caught hold deceased Waheed Ahmed at the time of causing of scissor blow by co-accused Abid Ali; that case of prosecution requires further inquiry into the guilt of applicants. Lastly, they prayed for confirmation of interim pre-arrest bail of Muhammad Muavia and Imdadullah and request for grant of post-arrest bail to the applicant Amir Ali. They had relied on the case laws reported in 2010 YLR 2893, 2011 SCMR 1543, 1996 P. Cr. L.J 1425, 1994 SCMR 393, 1995 SCMR 310, 1994 SCMR 2161, 2012 SCMR 265, 2011 MLD 155 &2010 MLD 1749.

4. Conversely, learned counsel for the complainant with the assistance of learned APG has opposed the bail applications on the ground that names of applicants are appearing in the FIR with a specific role and they have facilitated the principle accused to commit murder of deceased and prayed for dismissal of bail applications of applicants.

5. I have heard the learned counsel for the parties, learned APG and have examined the material available on record. A perusal of the record shows that the role assigned against the applicant Imadadullah only instigation and he has not actively participated in the commission of the offence, whereas, applicants Muhammad Muavia and Amir Ali have been attributed role of having catching hold from the arms to deceased Waheed Ahmed, while co-accused Abid Ali inflicted him scissor injury. It is also the case of prosecution that there is enmity between the parties and it is also the case of prosecution that they came there without any weapon. Furthermore, this incident has taken place in the presence of real brothers/complainant Asif Ahmed and relative Tarique Ahmed but both of them have not resisted when co-accused inflicted scissor blow, which creates doubt, in such circumstances, presence of witnesses at the scene of offence and the role of sharing common intention would be determined at the trial after evaluating evidence by the trial court. The applicants also pleading malafide on the part of the complainant that he has involved the entire family in the case with an ulterior motive. It is well settled principle of law at the bail stage, only tentative assessment is to be made, therefore, keeping in view the facts and circumstances of the case, prima facie, the case against the present applicants requires further enquiry as contemplated under sub-section (2) of section 497Cr.PC.

6. In view of the above, while relying on the case laws relied on by the learned counsel for the applicants/accused, I am of the view that applicants have made out their case for grant of bail. Accordingly, instant bail applications are allowed and resultantly interim pre-arrest bail earlier granted to the applicants Muhammad Muavia and Imdadullah vide orders dated 01.09.2016 and 05.09.2016 are hereby confirmed on same terms and conditions, while applicant Amir Ali Memon is granted post-arrest bail subject to furnishing solvent surety in the sum of Rs. 200,000/- (Two lacs) and PR bond in the like amount, to the satisfaction of trial Court.

7. Needles to mention herein that the observations made hereinabove are tentative in nature and would not prejudice the case of the party at trial.

JUDGE

Sajjad