IN THE HIGH COURT OF SINDH, BENCH AT SUKKUR

Crl. Bail Appln. No. S – 414 of 2018

Applicants: Muhammad Hayat, Shahbaz Ali and Zafar Hussain, through

Mr. Habib-ur-Rehman Shaikh, Advocate

Complainant: Abdul Hameed Baladi, through

Syed Muhib Ali Shah Luckyari, Advocate

Respondent: The State, through

Mr. Afzal Hussain Talpur, Assistant Prosecutor General

Date of hearing: 15.10.2018

Date of order: 15.10.2018

O R D E R

AMJAD ALI SAHITO, J- Through this application, the applicants Muhammad Hayat, Shahbaz Ali and Zafar Hussain, have sought pre-arrest bail in Crime No.86/2018 registered at Police Station, Faiz Ganj for offences punishable under Sections 302, 147, 148 & 149 PPC.

2. As per FIR registered on 11.05.2018 by one Abdul Hameed Baladi regarding the murder of his father Ali Murad, alleging therein that there was dispute going on in between the complainant and the accused party. On the day of incident, he (complainant) along with his father Ali Murad, younger brother Oshaque Ali and son-in-law Ghulam Shabbir were returning back from Akri, his father Ali Murad carrying two cement bags on his motorcycle was ahead of them, whereas, he along with his brother Oshaque Ali and son-in-law Ghulam Shabbir were riding on another motorcycle. It was about 0730 hours when they reached near Jamali petrol pump Akri, they were confronted by accused Muhammad Hayat, Irshad Ali, Zaffar Hussain, Razak Hussain, Shahbaz Ali Baladi, and one unknown person, who were riding on two motorcycles. On reaching they took out pistols and challenged his father Ali Murad by saying that today they will avenge the murder of deceased Ameer Ali Baladi and will not spare him. Thereafter all the accused persons with intention of murder made direct fires from their respective pistols upon him (deceased), on receipt of firearm injuries, he fell down on the western side of the road. The accused persons challenged the complainant party, as such due to scare of weapons, they remained silent and then all the accused persons escaped away towards the western side. The complainant party alighted from their motorcycles and went over the injured and found him having firearm injuries on his chest, left side of the abdomen which were through and through and another injury on his left arm elbow, who was bleeding and died within their sight. On the firearm reports and cries, the villagers attracted and came on the road, after arranging conveyance, the dead body was brought at the hospital, after the post-mortem and interment the complainant lodged such FIR.

3. Learned counsel for the applicant contended that the applicants have falsely been implicated in this case due to enmity admitted in the FIR and no specific role has been assigned to the applicants except the role of general firing during the incident; that all the P.Ws are related inter se being brother and son-in-law of the complainant, hence they all are highly interested and set up witnesses; that during the investigation, the applicants were found innocent and have been released under Section 497(2) Cr.P.C after recording the 161 Cr.P.C statements of the defence witnesses; that since the role of general firing is attributed to the present applicants, therefore, they are entitled to the concession of bail, hence, the interim pre-arrest bail granted to the applicants may be confirmed.

4. Learned counsel for the complainant contended that the applicants/accused are nominated in the FIR which has been lodged by the complainant promptly; that the applicants/accused have actively participated in the commission of the offence in which a person has lost his life; that the applicants are also involved in other criminal cases i.e. Crime No.127 of 2014 under Sections 302, 324, 148, 149 PPC, Crime No.149/2014 under Sections 364, 511, 148, 149 PPC, Crime No.186/2016, all registered at police station Faiz Ganj, therefore, from the aforesaid criminal record of the present applicants, it seems that they are desperate, dangerous and hardened criminals, hence they are not entitled to any leniency and extraordinary concession of pre-arrest bail. He lastly prayed that the interim pre-arrest bail granted to the applicants/accused may be recalled. Learned APG appearing for the State opposed the confirmation of interim pre-arrest bail to the present applicants/accused on the ground that they have been assigned the specific role of firing upon the deceased Ali Murad and further adopted the arguments of learned counsel for the complainant.

5. I have heard the learned counsel for the parties, learned APG for the State and have gone through the record. Perusal of the record shows that the FIR of the present incident was promptly lodged by the complainant in which the applicants/accused were nominated with specific role of making direct fires upon the deceased Ali Murad along with co-accused, thereby caused six (06) firearm injuries on the vital parts of the deceased which resulted into his death. Reverting to the contention of the learned counsel for the applicants/accused that there existed enmity between the parties, it is suffice to say that no benefit of plea of the previous enmity could be extended to the accused at bail stage, as the enmity cuts both ways and it may be cause for crimes as well as implications. The second contention of the learned counsel for the applicants/accused is that during the investigation the applicants/accused were released under Section 497(2) Cr. P. C being innocent. This ground is also not helpful to the applicants, because the concerned Civil Judge and Judicial Magistrate did not approve such report of the police and has joined the let-off accused in the case, whereas the report of the police is not binding upon the Court. The offence with which the applicants have been charged entails capital punishment hence falls within the prohibitory clause of Section 497 Cr.P.C, therefore, at this stage, no extraordinary concession can be granted to the present applicants/accused. The version as stated by the complainant in the FIR is supported by the medical evidence. Besides this, there is also a criminal record of the present applicants/accused, as prior to this three FIRs mentioned (supra) registered against the present applicants/accused which shows their involvement in the criminal cases. 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 the complainant/prosecution to save innocent people from their unjustified arrest and humiliation at the hands of police, but learned counsel for the applicants has failed to bring on record any material to believe that the applicants have falsely been involved due to malice or ulterior motives of the complainant.

6. While considering the above facts and circumstances applicants/accused have failed to make out case for grant of pre-arrest bail, as there is sufficient material available on record to connect them with the commission of alleged offence, hence I do not find any merits in the instant bail application therefore, the interim pre-arrest bail granted to the applicants/accused Muhammad Hayat, Shahbaz and Zafar Hussain dated 18.07.2018 is hereby recalled and the bail application is dismissed.

7. The observations made above are tentative in nature and will not affect the case of either party at the trial.

Judge

ARBROHI