ORDER SHEET
IN THE HIGH
COURT OF SINDH BENCH AT SUKKUR
Cr.
Bail Application No. S-417 of 2018.
|
Date |
Order with signature of Judge |
Present
Mr. Justice Amjad
Ali Sahito.
Applicant:
Nadir Ali son of Ali Sher bycaste Thebo, Resident of
village Gul Hassan Thebo, Taluka Kotdiji, District
Khairpur.
Mr. Khalil Ahmed Mailto advocate for applicant.
Respondent. The State.
Mr. Mir Afazal Hussain Talpur, Assistant
Prosecutor General.
Mr. Maqsood Ahmed Leghari advocate
for complainant.
Date of hearing. 17-09-2018.
Date of decision. 17-09-2018.
O R D E R.
.-.-.-.-.-.-.-.-.-.-.-.-.
AMJAD
ALI SAHITO, J.- By this Order I intend to dispose of instant bail
application arising out of crime No. 67 of 2018, offence u/s 302, 364,
337H(ii), 148, 149 P.P.C registered at police station Kotdiji. The instant bail
application is directed against the order dated 28-05-2018 passed by learned
1st Additional Sessions Judge Khairpur, where the pre arrest bail application
of applicant/accused Nadir Ali was rejected.
2. Briefly, the facts of the prosecution case are that
complainant Asif Ali Bugti
lodged the F.I.R. on 17-04-2018 alleging therein that on the day of report he
along with his brothers Kashif Ali and Jameel Ahmed were available at the DERA of wheat. At 12-10
am (midnight) they saw that eight armed persons came there, who were identified
to be Bachal with pistol, Shahnawaz
with repeater, Shah Dino alias Shahan with rifle, Mushtaq with pistol, Arbelo with
pistol, Allah Bux alias Goro, Wahid with guns and
Nadir Ali with pistol, all bycaste Theba came there and overpowered upon the complainant
party. Accused Bachal instigate other accused to
abduct Kashif and till they will not mutate the land
in their name, they will not release him. Accused Shahnawaz
and Shahid Dino tried to abduct away Kashif towards west and other accused persons overpowered
upon the complainant party. The complainant party raised cries, then accused Bachal made straight fire of pistol upon Kashif, which hit him and fell down and remaining accused
persons made aerial firing in order to create harassment. On the cries and
firearm report, the co-villagers attracted towards the place of incident. On
seeing them coming all the accused persons escaped away. Then complainant saw
that his brother Kashif sustained one firearm injury
at his temporal region, which was through and through and died at 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 applicant/accused
that applicant/accused is innocent and has falsely been implicated in this case
by the complainant due to dispute over the landed property, which complainant
himself has admitted in the FIR; that mere presence of the applicant/accused
Nadir Ali with pistol and making aerial firing is shown by the complainant in
the F.I.R, otherwise no any specific role has been attributed to him, which is
general in nature and he has not caused any injury to deceased; that after
getting interim pre-arrest bail, applicant/accused is regularly attending the
trail Court and he is no more required for further investigation. Lastly he
prayed that it is fit case for further enquiry, therefore, the applicant/accused
is entitled for concession of bail. He placed his reliance on cases reported in
2011 MLD 1017 TAZEEM AKBAR Vs THE STATE and another,
1983 P.Cr.L.J 2426 [Lahore] MUHAMMAD ISHAQ AND-3
OTHERS Vs THE STATE, 2017 P.Cr.L.J
Note 89 [Lahore (Rawalpindi Bench)] Mst. Syeda RAAZIA
BATOOL Vs The STATE and another, 1997 MLD 196 [Lahore]
SHERMAN BEGUM Vs STATE, 2009 P.Cr.L.J
320 [Karachi} TARIQ and 2 others VS THE STATE, PLD 2015 Sindh 20 KHALID AHMED
Khan LUND Vs THE STATE.
4. On
the other, learned counsel for complainant that the present applicant/accused is
nominated in the F.I.R and he has fully participated in the commission of
offence as he being armed with pistol facilitated the co-accused; that after registration
of F.I.R., I/O has recorded 161 Cr.P.C statements of PWs, who have fully supported
the version of complainant. He placed his reliance on case reported in 2012
SCMR 556, 2013 SCMR 385 and 2015 MLD 992. Lastly he prayed for dismissal of
instant bail applications.
5. Learned APG for the State has also opposed
for the confirmation of interim pre arrest bail on the ground that applicant/accused
is nominated in the F.I.R.
6. I
have considered the submissions of the learned counsels for the applicant/accused,
learned APG for the State and have gone through the material available on the
record with their assistance.
7. Perusal
of record shows that mere presence of the applicant/accused Nadir Ali with
pistol and making aerial firing is shown by the complainant in the F.I.R,
otherwise no any specific role has been attributed to him, which is general in
nature and he has not caused any injury to deceased. Admitted the deceased Kashif has sustained only one firearm injury at his
temporal region and complainant has involved eight accused persons and he has
admitted the enmity over the landed property with the accused, hence false
implication of applicant/accused cannot be ruled out. It has been held by the Hon'ble Supreme Court that where no active 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 Nadir Ali Thebo is
hereby confirmed on same terms and conditions. The case law relied upon by learned counsel for
the complainant is distinguishable from the facts and circumstances of the case
in hand.
8.
Needless, to mention
that the observations made herein above are tentative in nature and would not
prejudice the case of either party at trial.
Judge
Nasim/P.A