IN THE HIGH COURT OF SINDH BENCH AT SUKKUR
Cr. Bail Application No. S-280 of 2017.
Cr. Bail Application No. S-723 of 2017.
Cr. Bail Application No.S-724 of 2017.
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DATE OF HEARING |
ORDER WITH SIGNATURE OF JUDGE |
For hearing
Mr. Sardar Akbar Ujjan, Advocate for applicants.
Mr. Shabbir Ali Bozdar, advocate for complainant.
Mr. Mir Afzal Hussain Talpur, Deputy Prosecutor General.
Date of hearing 30-07-2018.
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SHAMSUDDIN ABBASI, J: By this single Order, I intend to dispose of instant Cr. Bail Application No. S-280 of 2017 filed by applicants Ghulam Qadir and Pir Bux, Cr. Bail Application No.S-724 of 2017 filed by applicant Riaz Ahmed as both the Bail Applications arises out of one and same crime bearing No. 92/2017 registered at police Station Dars u/s 302, 324, 337H(2), 148, 149 and 34 PPC, so also Cr. Bail Application No. S-723/2017 filed by applicant Riaz Ahmed arising out of crime No. 127/2017 registered at police station PS Dars u/s 24 of Sindh Arms 2013.
2. The brief facts of the prosecution case are that complainant Muhammad Haroon Bhatti lodged an F.I.R on 14-03-2017 at 2100 hours at PS Dars, alleging therein that he was doing business of chaff. Muhammad Yameen son of Baradi Khan was son of his maternal uncle and Ghulam Qadir son of Muhammad Hussain was his maternal cousin (Masat). Some days back his maternal cousin Muhammad Yameen had exchanged harsh words with Mitho Bhatti on account of throwing cattle dung in a Government plot. As such they were annoyed with each other and were not on talking terms. He had prevented his maternal cousin from passing through the street in front of their house. On the day of incident the complainant, his maternal cousin Muhammad Yameen, maternal cousin Ghulam Qadir, cousin Mahboob Ali both sons of Muhammad Hussain Bhatti and cousin Muhammad Umar came out from their houses and were going towards minor (shakh) through common street. At that time accused 1. Mitho alias Porho armed with DBBL gun, 2. Riaz with DBBL gun, 3. Pir Bux with 44 rifle, 4. Ghulam Qadir alias Ghulam with pistol all son s of Muhammad Bhatti, 5. Muhammad Essa alias Gul Muhammad with single barrel gun and two unidentified persons armed with single barrel guns, whom the complainant party claimed to have seen them clearly and could identify them on seeing again. Accused Mitho alias Porho challenged Muhammad Yameen that he had prevented him several times not to pass through the said street, but he had not refrained, as such he would not spare him and would kill him. Within the sight of the complainant party, accused Mitho alias Porho made direct fires of gun at Muhammad Yameen with intention to kill him, while accused Riaz Bhatti made direct fires of gun at Ghulam Qadir with intention to kill him. Both raised cries and fell down. On the firearm reports other villagers also came there. The complainant party gave name of HOLY QURAN to the accused, who then went to their houses making aerial firing and abusing the complainant party. The complainant along with said witnesses saw that Muhammad Yameen had sustained fire arm injuries on left circular side of the chest, nose, on left side below abdomen, on the upper left side of buttocks, on right arm and other parts of the body. Ghulam Qadir had sustained injuries on left and right thighs and back side of buttocks and other parts of the body. The complainant immediately arranged vehicle and took the injured to Taluka hospital Moro; but Muhammad Yameen expired on the way. Leaving the deceased Muhammad Yameen and injured Ghulam Qadir in Taluka hospital Moro, gave such information at PS and obtained letter for treatment of the injured and further proceedings were initiated for disposal of the deceased. The injured was sent to Nawabshah with the help of the above named witnesses. The dead body of the deceased was taken to the village and after completing the formalities of burial of the deceased, the complainant then went to the PS and lodged the above F.I.R. He requested for investigation.
3. After registration of F.I.R., investigation was followed and during investigation police found applicant Ghulam Qadir and Pir Bux as innocents and their names have been placed in column No.2 of the challan. Police also arrested applicant Riaz Ahmed and crime weapon has also been recovered on the pointation of applicant Riaz Ahmed and separate FIR u/s 24 of Sindh Arms Act 2013 has been registered against him while showing the main accused Mitho alias Porho in the column of absconders, but learned Magistrate did not agree with the police opinion, took the cognizance and joined the applicants Ghulam Qadir and Pir Bux as accused in the case. The applicant Ghulam Qadir and Pir Bux have got interim pre arrest bail from the Court of learned Sessions Judge Naushehro Feroze and the same was turned down vide order dated 11-05-2017, thereafter, both applicants have approached to this Court and got interim pre arrest bail from this Court. Applicant Riaz Ahmed has also moved bail application u/s 497 CrPC before learned trial Court, which was also turned down vide order dated 11-11-2017 and thereafter he also filed post arrest bail application before this Court.
4. It is contended by learned counsel for the applicants that there was delay of 13 hours in lodging of FIR and no plausible explanation has been furnished by the complainant for such inordinate delay in lodging of FIR. He further contended that there in back ground of murderous enmity, it cannot be ruled out that FIR has been lodged after due consultation as the complainant party has implicated in this case four real brothers with malafide intention and ulterior motives. He further contended that applicant Ghulam Qadir was shown armed with pistol and Pir Bux was shown armed with 44 Rifle, but mere presence at the scene of offence has been shown and even no overt act role has been assigned to them. He further contended that applicant Ghulam Qadir and Pir Bux were found innocent during investigation and police submitted such report before the concerned Magistrate, who did not agree with the police opinion and joined them as an accused and on the direction of learned Magistrate, police submitted challan against applicants Ghulam Qadir and Pir Bux. He further contended that they did not misuse their concession of bail, but learned trial Court has not turned down their bail on merits and rejected their bail on technical grounds for the reasons that applicants Ghulam Qadir and Pir Bux were directed to join trial/investigation, but they did not comply such directions and their bail was rejected on this ground. He further contended that both applicants have joined the investigation and he has placed letters which reflects that they have joined the investigation and their case was recommended to the concerned learned Magistrate by placing their names as innocent in the column No.2 of the challan. He further contended that no allegation of causing injury to injured has been assigned to them. He further contended that incident of this case was result of sudden flared up. He further contended that main role of firing at deceased Muhammad Yameen has been assigned to accused Mihto alias Porho and as for the role of applicant Riaz Ahmed is concerned, he has been shown armed with DBBL gun and he caused gunshot injury to injured PW Ghulam Qadir on left and right thighs and on buttock. He further contended that no overt act role has been assigned to applicant Riaz Ahmed and injuries caused by applicant Riaz Ahmed to injured Ghulam Qadir were on non-vital part of the body and as per final medical report, all the injuries sustained by injured Ghulam Qadir on non-vital part of the body and the same were declared as Jurah-Ghyre-Jaifah Mutalahimah, which is punishable for 03 years. He further contended that role of causing injury to injured PW Ghulam Qadir in respect of intention of attempt to commit murder requires evidence and would be determined after recording evidence and at this stage, he is entitled to grant bail. He further contended that gun was foisted upon applicant Riaz Ahmed by the police as he was arrested on 05-04-2017, whereas the gun was recovered on his pointation on 14-04-2017, almost delay of 10 days which created serious doubt in the process of recovery. He has placed his reliance on the cases reported in 2001 Cr.L.J 403 Re: MANZOOR Ali ALIAS MUMTAZ VERSUS THE STATE, 2013 YLR 1481 Re: AETBAR versus The STATE, 2013 YLR 990 Re: SAID NAWAB and 2 others versus The STATE through Additional Advocate General and another, 2011 MLD 349 Re: SHER ALAM Khan alias VAKIL KHAN versus The STATE and another, 2003 MLD 145, Re: MUHAMMAD SALEEM versus The STATE and another and 1999 SCMR 1320 Re: ATTAULLAH and 3 others versus The STATE and another.
5. On the other hand learned counsel for complainant contended that applicant/accused are nominated in the FIR, they came at the place of incident armed with weapons with intention to commit murder. He further contended that applicants/accused Ghulam Qadir and Pir Bux have shared common intention and they have actively participated in this incident. He further contended that accused Riaz Ahmed was arrested and crime weapon has been recovered on his pointation and the same was sent to the ballistic expert along with crime empties recovered from the place of incident were matched with the weapon. He further contended that active role of firing has been assigned to accused Riaz Ahmed, who caused firearm injuries to PW Ghulam Qadir with intention to commit his murder. He further contended that all the applicants/accused came at place of incident with common intention and they are not entitled for such extra ordinary relief of bail and their case falls within the ambit of prohibitory clause of section 497 CrPC. He has placed the case law reported in 2009 SCMR 725 Re: RIAZ AHMED versus The STATE, 2016 SCMR 1529 Re: MOHSIN Ali versus The STATE and others, 2016 P.Cr.L.J 1120 Re: SABIR HUSSAIN and another versus The STATE, 2012 SCMR 707 Re. MUHAMMAD AFZAL versus The STATE, 2011 YLR 2270 Re. ZULFIQAR Ali versus The STATE, 2016 SCMR 1401 Re: MUHAMMAD IMRAN versus The STATE and others, 2015 SCMR 655 Re: MUHAMMAD FAIZ alias BHOORA versus The STATE and another and 2012 MLD 314 Re. QURBAN ALI versus THE STATE.
6. Learned Deputy Prosecutor General has supported the contention of learned counsel for complainant. He further added that delay has been well explained, ocular evidence is corroborated by medical evidence, crime weapon has been recovered from accused Riaz Ahmed and the same was matched with crime empties and he has also opposed for grant of bail.
7. Heard learned counsel for the applicants/accused, learned counsel for complainant as well as learned Deputy Prosecution General and perused the material available on record.
8. It is admitted fact that there was delay of 13 hours in lodging of the FIR as the incident had taken place on 14-03-2017 at 08-00 am, whereas the FIR of this incident was lodged by the complainant on 14-03-2017 at 09-00 pm and no plausible explanation has been furnished. It is also matter of record that complainant stated in the FIR that soon after the incident, they shifted the injured to Taluka Hospital and thereafter he approached to police station, and got referral letter for treatment of injured Ghulam Qadir but he did not get registered FIR. In this situation apparently possibility could not be ruled out that FIR has been lodged after consultation, particularly in back ground of murderous enmity, complainant has implicated as many as four male members of one and same family. It is also matter of record that applicant Ghulam Qadir and Pir Bux were found innocent during investigation and police has placed their names in column No. 2 of the challan sheet and released them u/s 497 CrPC, but they were joined in the trial on the direction of learned concerned Magistrate, who has shown disagreement with the police opinion and joined them as accused, therefore, I am of the view that due to delay of 13 hours in lodging of FIR and in back ground of murderous enmity and four real brothers have been implicated in this case, out of them mere presence of applicants Ghulam Qadir and Pir Bux has been shown at the scene of offence. Neither they have caused any injury to complainant party nor any overt act role has been assigned to them. Moreover, during investigation, they were also found innocent, therefore, I am of the considered view that case of applicants/accused Ghulam Qadir and Pir Bux prima-facie calls for further enquiry in terms of section 497 (2) CrPC. I admit them on bail and their interim bail is confirmed on same terms and conditions.
9. As for the role of applicant Riaz Ahmed is concerned it has specifically been mentioned in the FIR that he caused firearm injuries to PW/injured Ghulam Qadir, which hit on his left and right thighs and on his buttock and ocular version is corroborated by medical evidence. Moreover, during investigation crime weapon (DBBL gun) was recovered on his pointation and police has registered separate FIR of recovery of crime weapon. After recovery of crime weapon from the possession of applicant, same was sent to ballistic expert along with empties recovered from the scene of offence and crime empties were matched with the gun recovered from the possession of applicant/accused Riaz Ahmed. From the tentative assessment of the case, there are reasonable grounds to believe that applicant/accused Riaz Ahmed has committed offence punishable for imprisonment of life, hence he is not entitled for grant of bail, therefore, I rejected his both bail applications. These are the reasons of my short order dated 30-07-2018.
10. Needless to mention here that observation made herein above are tentative in nature and trial Court shall not be influenced by such observations while deciding the case on merits.
J U D G E
Nasim/P.A