ORDER SHEET
IN THE HIGH COURT OF SINDH BENCH
AT SUKKUR
Cr. Bail
Application No. S-664 of 2017.
Date |
Order with signature of Judge |
Applicants: 1. Shahid Hussain son of Ghulam Mustafa bycaste Rind, resident of village Fakir Muhammad Rind, Taluka Mirwah, District Khairpur.
2. Saith Ali son of Ghulam Akbar bycaste
Phull, Resident of village Kharira,
Taluka Mirwah, District
Khairpur.
3. Ghulam Qasim son of Jamaluddin
bycaste Khokhar, Resident
of village Wali Muhammad Khokhar,
Taluka Mirwah, District
Khairpur.
Miss
Farzana Bhatti advocate for
applicants.
Cr. Bail
Application No. S-763 of 2017.
Applicants Abdul Ghafoor son of Rahim Bux, bycaste
Phull, Resident of village Wand Torpio,
Taluka Mirwah, District
Khairpur.
Mr.
Shabbir Ali Bozdar advocate for applicant.
Respondent. The State.
Mr.
Bakhat Ali Rajper advocate
for complainant.
Mr. Abdul Rehman Kolachi, Deputy Prosecutor
General.
Date
of hearing. 01-10-2018.
Date of Decision.
01-10-2018.
O R D E R.
.-.-.-.-.-.-.-.-.-.-.-.-.
AMJAD ALI
SAHITO, J.-
By this common Order, I intend to dispose of the captioned bail
applications arising out of one and same crime. Bail Application No.S-664/2017
is directed against the order dated 31-10-2017 passed by learned IVth Additional Sessions Judge Khairpur, whereby the
Pre-Arrest Bail Application of the applicants/accused Shahid
Hussain, Saith Ali and Ghulam Qasim
was dismissed. The Bail Application No.S-763/2017 is directed against the order
dated 18-11-2017 whereby the Pre-Arrest Bail Application of applicant/accused Abdul
Ghafoor Phull was dismissed
by the same Court.
2.
Briefly,
the facts of the prosecution case are that complainant Mst. Amina
Solangi lodged the F.I.R. on 05-10-2017 alleging therein that on the day of
report they were sitting in their house. At about 4-00 pm accused HC Shahid
Hussain, PC Sajid Phull, PC
Saith Ali Phull and Qasim Khokhar entered in to the house
and accused Shahid Rind captured her husband Ali Murada and strangulated him and committed his murder and
then all the accused persons escaped away from the spot. Ultimately complainant
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 by the complainant in
the FIR; that all the witnesses are closely related to the complainant and
there is no any independent witnesses has been cited by the complainant; that except
applicant/accused Shahid Rind, mere presence of the remaining
applicants/accused has been shown by the complainant in the F.I.R. and no
specific role has been attributed by the complainant against them; that deceased
was habitual offender and he was involved in number of criminal cases and
applicant/accused Shahid Rind and Ghulam Qasim are witnesses in Crime No. 225/2017; that the
deceased had died due to his natural death and complainant has lodged false
F.I.R. against the applicants/accused in order extort some money from them,
therefore, the case of the applicants/accused requires for further enquiry and
they are entitled for concession of bail. In support of his contentions,
learned counsel relied upon cases of Muhammad Aslam
and another v. The S tate
(2012 YLR 858), Riaz Ahmad v. The
State (2009 SCMR 725), Zulqarnain v. The State (2016 YLR 183), Muhammad Ramzan
v. The State (2017 YLR 441), and Muhammad Shahban v. The State (2012 YLR
858).
4.
On the other, learned counsel
appearing on behalf of complainant has argued that
applicants/accused are nominated in the F.I.R. They duly armed with
deadly weapons entered in the house of complainant and committed the murder of her
husband Ali Murad; that F.I.R has been promptly
lodged by the complainant; that after registration of F.I.R., I.O recorded 161 CrPC statements of PWs, who have fully supported the
version of complainant. He has also placed on record number of F.I.Rs, in which
applicant Shahid Hussain is involved. Lastly he
prayed for dismissal of instant bail applications.
5.
Learned Deputy
Prosecutor General has also opposed the confirmation of interim pre-arrest bail
of applicant/accused Shahid Hussain Rind on the
ground that he is criminal and has been attributed specific role of committing
murder of deceased. However, he recorded no objection for the confirmation of
interim pre-arrest bail already granted to the remaining applicants/accused.
6.
I have considered the
submissions of the learned counsels for the applicants/accused, learned counsel
for the complainant, 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 applicants/accused Saith
Ali, Ghulam Qasim and Abdul Ghafoor
has been shown by the complainant in the F.I.R without attributing any injury
to the deceased. The role assigned against applicants Saith
Ali, Ghulam Qasim and Abdul Ghafoor
is yet to be determined in the trial of the case. The question of vicarious
liability and sharing of common intention in the incident cannot be decided at
bail stage. The prosecution witnesses while making their statements in terms of
section 161 Cr.PC have also narrated mere presence of
the applicants at the spot. In this respect, reliance can be placed from the
cases reported as Muhammad Sadique and others v. The State (1996 SCMR 1654) and Abdul Rehman
v. Javed and others (2002 SCMR 1415). After
grant of interim pre arrest bail, the applicants/accused have joined the trial
and they have not misused the concession of interim pre arrest bail and their requires for further enquiry and they are also
entitled for concession of same relief.
8.
In view of above, the
interim pre arrest bail already granted to the applicants/accused Saith Ali, Ghulam Qasim and Abdul
Ghafoor is confirmed on same terms and conditions and
the above instant pre arrest bail applications stand disposed of accordingly.
9.
As for as the case of
applicant/accused Shahid Hussain Rind is concerned,
the complainant has implicated him with specific role that he put his both
hands into the neck of deceased Ali Murad and
strangulated him. During investigation, the I/O has recorded 161 CrPC statements of PWs , who have
also supported the version of complainant. Furthermore, the learned counsel for
the complainant submits number of F.I.Rs, which shows that applicant Shahid Hussain being police officer is involved in number
of criminal cases. Sufficient material is available on record
which prima facie connect the applicant Shahid
Hussain with the commission of offence. There is no mala fide on the part of
the complainant nor Investigation Officer, therefore, he is not entitled for concession
of bail and his pre arrest bail application is dismissed and interim order
dated 01-11-2017 is hereby recalled to the extent of applicant/accused Shahid Hussain Rind.
In view of the above, both the above mentioned bail applications stands
disposed off.
10.
Needless to mention that
the observations made herein above are tentative in nature and are strictly
confined to the disposal of instant bail applications.
Judge
Nasim/P.A