IN THE HIGH COURT OF SINDH BENCH
AT SUKKUR
Cr. Bail Application No.S-540 of
2016.
Date |
Order with signature of Judge |
Applicants: 1.Sarfraz Ali Shah son of Nadir Ali Shah.
2.GhulamNabi
Shah @ Nabi Shah s/o of Nadir Ali
Shah.
3.
Muqeem Shah son of Syed Hashim Ali Shah.
All
caste Syed, Resident of village Sadar Ji Bhatyoon,
Taluka Kingri, District Khairpur through Syed Murad Ali Shah Advocate.
Cr. Bail Application No.S-670 of
2016.
Applicant Naeem
Ali Shah son of Syed Hashim Ali Shah by caste Syed Resident of village Sadar Ji Bhatyoon,
Taluka Kingri, District Khairpur through Syed Murad Ali Shah, Advocate.
Complainant: Through Mr. Manzoor Hussain Ansari Advocate.
The State Through 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 crime Non 08/2016,
offence u/s 302, 452, 337F(iii), 337A(ii), 337F(i), 337A(i), 337H(2), 114, 148,
148, 149 P.P.C of Police Station Abdul Rehman Unnar. Both the above-mentioned Bail Applications are directed against the order dated 03-08-2016,
whereby the same was dismissed by the
Court of learned IIIrd Additional Sessions Judge Khairpur.
2.
Briefly,
the facts of the prosecution case are that complainant Shakeel Ashiq Channa
lodged the F.I.R. on 22-06-2016 alleging therein that on 21-06-2016 at night
time he along with his father Ashiq Ali aged about 57/58 years, relatives Javed
Ahmed, Muneer Ahmed, Mehtab Ahmed, Nawab Khan, Naveed Ahmed, Qamaruddin, Naseer
Ahmed all by caste Channa and their servant Waheed Soomro were chitchatting in
their Otaq. At about 2145 hours they saw and identified accused Zubair Shah, Munawar Ali Shah both with lathis, Nasim Shah
with TT pistol, Rashid Ali Shah, Saleem Shah, Naeem Shah, Muqeem Shah, GulFaraza
Shah, Nabi Shah, Sarfaraz Shah with iron rods and 05 unidentified accused
persons with pistols came there. While coming, accused Munawar Ali Shah abated the remaining to commit the murder of
complainant party, on which accused Munawar
Ali Shah caused lathi blow to Ashiq Ali
Shah behind the back side of his head. Accused Zubair Shah and Nasim Shah
caused lathi and butt blows of the pistol
to the father of complainant at his back and others parts of the body, who went unconscious. Accused Naeem Shah
caused iron rod blow to the complainant
at his left side of the head and left
cheek. Accused Rashid Ali Shah caused
iron rod blow to Muneer Ahmed Chand at his right shoulder. Accused Nabi Shah
caused iron rod blows to Mehtab Ahmed Channa at his both arms, forehead and
other parts of the body. Accused Gul Faraz
Shah caused iron rod blows to Nawab Khan Channa at the right side of his chest. Accused Muqeem Shah caused iron rod blows to Naveed Ahmed Channa at the right side of his head and both shoulders.
Accused Sarfaraz Shah caused iron rod blows to Qamaruddin Channa at the left side of his cheek, face, and teeth. Accused Zubair Shah caused lathi
blows to Naseer Ahmed Channa at the left
side of his abdomen. Accused Naeem Shah caused iron rod blows to Waheed Soomro
at his head and shoulder. The complainant party raised cries, which attracted
to co-villagers, then accused made aerial firing and went out from the Otaq
while extending threats of dire consequences. The complainant party brought the
injured to Civil Hospital Khairpur, where Ashiq Ali Channa father of the
complainant succumbed to the injuries. Ultimately complainant lodged the above
said F.I.R.
3. It is, inter-alia, contended by
the learned counsel for the applicants/accused that they are innocent and have
falsely been implicated in this case due to enmity, which is admitted by the
complainant in the FIR; that there is an inordinate
delay of about one day in lodging the F.I.R; that all the witnesses are closely
related to the complainant and no any independent witnesses have been sighted by the complainant; that the medical evidence is in conflict with
ocular account of evidence; that mostly the applicants/accused belong to one
and same family and complainant has falsely dragged them due his personal
grudge; that case has been challaned and
applicants/accused are no more required for further investigation, therefore,
their case requires further investigation and they are entitled to concession of bail.
4.
On the other, learned counsel for
complainant has argued that applicants/accused are nominated in the F.I.R with
specific role as they along with co-accused duly armed with deadly weapons with
their common object came at the place Otaq of complainant and committed the
murder his father so also caused injuries to PWs; that F.I.R. has been promptly
lodged by the complainant and as far as delay of one day is concerned, the
complainant has fully explained such delay in the F.I.R. that after funeral
ceremony of his father and treatment of injured,
he appeared at police station and lodged the FIR; that the PWs in their
statements recorded in terms of section 161 Cr.PC have fully implicated the
applicants with the commission of offence;
that there is no mala fide on the part of the complainant or Investigating
Officer, therefore, he opposed for the grant of pre-arrest bail to the
applicants/accused.
5.
Learned Deputy Prosecutor General
has also supported the arguments of learned counsel for the complainant and seeks dismissal of both the
bail applications.
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. Perusal of record shows that applicants/accused
along with co-accused duly armed with deadly weapons, in furtherance of their
common object, came at Otaq of complainant, committed the murder of Ashiq Ali
Channo, father of complainant so also caused injuries to the complainant. Accused
Sarfaraz Shah caused iron rod blows to Qamaruddin Channa at the left side of his cheek, face, and teeth. Accused Nabi Shah caused iron rod
blows to Mehtab Ahmed Channa at his both arms, forehead and other parts of the body. Accused Muqeem Shah caused iron rod blows to Naveed Ahmed Channa at the right side of his head and both shoulders. Applicant
Naeem Shah caused iron rod blow to the complainant
at his left side of the head and left
cheek. It is settled principle of law that at bail stage only tentative
assessment is to be made. A perusal of
record shows that names of applicants/accused transpired in the FIR with a specific role and serious allegations of committing
murder of one Ashique Ali so also causing injuries to injured persons, named
above, which shows the presence of the applicants at the place of occurrence.
7.
Furthermore, it is settled
proposition of law that concession of pre-arrest bail is always extended in the
case of mala fide and ulterior motives on the part of complainant/prosecution
to save innocent people from their unjustified arrest and humiliation at the
hands of police, but learned counsels for applicants have failed to bring on
record any material to believe that they have been falsely involved due to
malice or ulterior motives of the complainant or they had not committed the
alleged offence. Reliance is placed upon
the case of Riaz Ahmed v. The State (2009
SCMR 725).
8.
So far plea raised by learned
counsel for the applicants that there is a conflict
between medical evidence and ocular account, for which it suffices to say that at bail stage this plea
cannot be considered without a deeper appraisal of evidence. Reliance is placed upon the case of Mumtaz v. The State (2012 SCMR 556), wherein Hon’ble
Supreme court of Pakistan has held that:
“3…….the
conflict between medical evidence and the ocular account cannot be appreciated
without a deeper appraisal of evidence which is not warranted at bail stage”.
9.
Considering the above facts and
circumstances, applicants/accused have failed to make out their case for grant
of bail. The alleged offence falls within
the ambit of prohibitory clause of section 497 Cr.PC. Prima facie, ample
evidence/material is available on record to connect the present applicants with
the commission of the alleged offence. Hence, I do not find a fit case for
grant of bail to the applicants and resultantly, instant Bail Application No.S-
540 of 2016, filed by applicants Sarfraz Ali Shah, Ghulam Nabi Shah, and Muqeem Shah and Crl. Bail Application No. S-670 of 2016, filed by
applicant Naeem Shah seeking pre-arrest bail stand dismissed and earlier orders
granting interim pre-arrest bail to applicants are hereby recalled.
10.
Needless to mention here that
observations made hereinabove are tentative in nature and would not prejudice
the case of either party at trial.
JUDGE
Nasim/P.A