ORDER SHEET

IN THE HIGH COURT OF SINDH BENCH AT SUKKUR

Cr. Bail Application No.S-787 of 2016.

Date	Order with signature of Judge

Present

Mr. Justice Amjad Ali Sahito.

Applicants: 1. Dadan Khan son of Ghulam Ali.

2. Zaman son of Dadan Khan.

Both bycaste Mari, Residents of village TandoMasti Khan, Taluka& District Khairpur.

Mr. Farman Ali Kanasro advocate for applicants.

Cr. Bail Application No.S-89 of 2017.

Applicants 1.Yakhtiar son of Zulfiquar Ali.

2. Zulfiquar Ali son of Ghulam Ali.

Both bycaste Mari, Residents of village TandoMasti Khan, Taluka& District Khairpur.

Mr. Ghulam AsgharAbbasi advocate for applicants.

Respondent. The State.

Mr. Mir Afazal Hussain Talpur, Assistant Prosecutor General.

Date of hearing. 03-09-2018.

O R D E R.

.-.-.-.-.-.-.-.-.-.-.-.-.

AMJAD ALI SAHITO, J.-By this single Order captioned bail applications arising out of same crime are disposed of together. Bail Application No.S-787/2016 is directed against the order dated 07-11-2016 passed by learned IVth Additional Sessions Judge Khairpur, whereby the Pre-Arrest Bail Application of the applicants/accused Dadan Khan and Zaman was dismissed. The Bail Application No.S-89/2017 is directed against the order dated 11-02-2017 whereby the Pre-Arrest Bail Application of applicants/accused Yakhtiar and Zulfiquar Ali was dismissed by the same Court.

2. Briefly, the facts of the prosecution case are disclosed in the F.I.R. are that on 30-09-2016 complainant Arshad Ali Marri lodged the F.I.R, alleging therein that his maternal uncle Zulfiquar and others were annoyed upon them over the share of ancestral property and they always used to extend threats that they would never spare them and commit their murder. On the day of incident, complainant along with his brother Asif Ali aged about 20/21 years, uncle Amir Mukhtar and Ghulam Rasool came at TandoMasti for some work. On 29-09-2016 at 4:45 pm, when they reached near Otaq of Aijaz Mari situated in main street of TandoMasti, where they saw and identified accused Zulfiquar Ali armed with TT pistol, Dadan Khan with gun, Yakhtiar and Zaman with lathies. Accused Zulfiquar Ali gave hakal to complainant party and made direct fire upon Asif Ali with intention to commit his murder, which hit him and fell down on the ground. Complainant raised cries, whereupon accused Yakhtiar and Zamaninflicted lathi blows to him on his head and other parts of body, while accused DadanMarri made aerial firing in order to create harassment and then all accused escaped away towards south. Then complainant saw that his brother Asif Ali sustained firearm injury at left side of his neck, he was bleeding and died on the spot. Ultimately complainant appeared at police station and lodged the above said F.I.R.

3. It is, inter-alia, contended by the learned counsel for the applicants/accused that applicants/accused are innocent and have falsely been implicated in this case; that there is inordinate delay of about seven hours in lodging the F.I.R. and such delay has not been explained by the complainant; that allegation against the applicant/accused Dadan is that he made in effective firing and no specific role has been assigned to him; that the allegations against applicants/accused Zaman and Yakhtiar is that they inflicted lathi blows to complainant, which are general in nature and they have not caused any injury to deceased. They further argued that after getting interim pre-arrest bail, applicants/accused are regularly attending the trail Court and they are no more required for further investigation. Lastly they prayed that it is fit case for further enquiry, therefore, the applicants/accused entitled for concession of bail.

4. On the other, learned APG for the State contended that delay has properly been explained by the complainant; that the present applicants/accused are nominated in the F.I.R and they have fully participated in the commission of offence; that the applicant Zaman and Yakhtiar have inflicted lathi blows to the complainant, while accused Zulfiquar Ali directly fired upon the deceased Asif Ali, resultantly he was died at the spot. Lastly he prayed for dism

issal of instant bail applications.

5. I have considered the submissions of the learned counsels for the applicants/accused, learned APG for the State and have gone through the material available on the record with their assistance.

6. Perusal of record shows that the role assigned against the applicant/accused Dadan is of making ineffective firing and he has not actively participated in the commission of the offence, whereas the applicants/accused Zaman and Yakhtiar armed with lathies and they both were found to be present at the place of incident and caused lathi blows to the complainant on different parts of his body which is confirmed by medical report. The role assigned against applicant/accused Zulfiquar Ali that he has directly fired upon the deceased Asif Ali, resultantly he died on the spot and such injury is confirmed by the medical officer in the postmortem report. During the course of investigation, the investigation officer recorded 161 CrPC statements of PWs, who have fully supported the version of the complainant. the role of the applicant/accused Dadan is that he only made aerial firing and has not actively participated in the commission of offence, whereas, it has been held by the Hon'ble Supreme Court that where no role is attributed to accused and it is mere presence then the case becomes of further inquiry as his presence will be determined at the time of trial. The same ratio has been laid down in the case of Muhammad Irfan Vs. The State and others(2014 SCMR 1347), therefore, in such situation the bail of the applicant/accused Dadan is hereby confirmed on same terms and conditions. Reverting to the case of applicants/accused Zaman and Yakhtiar, they both were found present at the place of incident and have participated in the commission of offence by causing lathi blows to the complainant at different parts of his body and applicant/accused Zulfiquar Ali directly fired upon deceased Asif Ali, who succumbed to the injuries and died on the spot, which is supported by medical evidence. The names of applicants/accused Zaman, Yakhtiar and Zulfiquar Ali transpired in the F.I.R with specific role and the delay in lodging of the F.I.R. has properly been explained by the complainant. It is well settled principle of law that at the bail stage only tentative assessment is to be made. It seems that the applicants Zaman, Yakhtiar and Zulfiquar Ali are involved in the heinous offence and their case squarely falls within the prohibitory clause of section 497 CrPC.

7. Considering the above facts and circumstances, applicants/accused have failed to make out their case for grant of bail, as there is sufficient material available on record to connect them with the commission of alleged offence. Hence I do not find a fit case for grant of bail to the applicants and resultantly the pre-arrest bail application No. 787/2016 filed by the applicant Zaman seeking pre-arrest bail so also bail application No.S-89 of 2017 filed by applicants Yakhtiar and Zulfiqar seeking pre-arrest bail stand dismissed. Earlier order granting interim pre-arrest bail to applicant Zaman, Yakhtiar and Zulfiqar are hereby recalled.

8. Needless to mention here that the observation made hereinabove are tentative in nature and would not prejudice the case of either party at trial.

JUDGE

Sajjjad