ORDER SHEET

IN THE HIGH COURT OF SINDH, BENCH AT SUKKUR

Cr. Bail Application No. S – 466 of 2017

DATE ORDER WITH SIGNATURE OF JUDGE

For hearing of bail application

22.10.2018

Mr. Miran Bux Shar Advocate for the applicant

Syed Sardar Ali Shah, DPG for the State

>>>>>>>…<<<<<<<

Through instant bail application, the applicant/accused Zaheer Gopang has sought pre-arrest bail in Crime No.212/2016 registered at police station Kotdiji, District Khairpur for an offences under Section 302, 114 PPC.

2. The facts as per FIR registered by complainant Mst. Manzooran Khatoon at Police Station Kotdiji are that her sister Mst. Jaral aged about 35 years was married with Soobal Gopang and she has two sons from the said wedlock, her husband Soobal died and after his death, Mst. Jaral was married with Mehar Ali Gopang and from that wedlock she has three sons and one daughter; her second also Mehar Ali Gopang also expired. After the death of her second husband Mst. Jaral along with her children was residing with the complainant. After the death of second husband of Mst. Jaral, her step-brother Ghulam Hussain used to say Mst. Jaral for solemnizing third marriage because her hand has been demanded by party at Taluka Nara, on which she refused on the ground that who will maintain her minor children, as such Ghulam Hussain became annoyed. On 29.12.2016 in the morning time, the complainant along with her sister Mst. Bastan W/o Haibat Ali, Mst. Gul Pari W/o Haji Imdad Ali, and Mst. Jaral widow of Mehar Ali were present and sitting on the Cots, when at about 0700 hours, there came accused Ghulam Hussain, with DBBL Gun, Zaheer (present applicant), Imdad, both sons of Manghan Khan Gopang, empty handed, on coming accused Ghulam Hussain shouted that no one should stand up, whereas, accused Zaheer and Imdad instigated accused Ghulam Hussain to murder Mst. Jaral, as she being step-sister did not accept your demand of marriage, hence on their instigation, accused Ghulam Hussain made direct gunfire upon Mst. Jaral with intention of murder, which hit on her abdomen, she raised cries and fell down on the ground, the complainant party raised cries, which attracted the neighbourers, who came running there, on seeing them all the accused persons escaped along with gun towards their houses. Thereafter the (complainant party) went over Mst. Jaral and found that she had firearm injuries on her abdomen and died within their sight and she arranged conveyance and removed the dead body to government hospital Kotdiji and after burial she (complainant) went to police station and such FIR was lodged.

3. Learned counsel submits that the applicant is innocent and he has been falsely implicated in this case by the complainant due to family dispute, whereas, as per FIR there is no independent eyewitness of the incident except the family of the deceased. He further contends that as per FIR no specific overt act has been attributed to the present applicant in the commission of the alleged offence and mere presence of the applicant has been shown at the place of incident and the role of instigation has been attributed to him along with co-accused Imdad. He lastly contends that at the most the case of the applicant falls under common intention, which is yet to be proved after recording of evidence before the trial Court whether the applicants had participated in the alleged offence or even facilitated the co-accused Ghulam Hussain who has been assigned the role of causing firearm injury to deceased Mst. Jaral. He further submits that the case is pending trial and applicant is attending the trial Court regularly, hence the applicant is entitled for confirmation of his interim pre-arrest bail. Learned counsel in support of his contentions has relied upon the case of Manzoor Hussain v. State (2010 M L D 1749) and case of Nadeem v. The State (2016 SCMR 1619).

4. Learned DPG for State conceded for confirmation of the interim pre-arrest bail to the applicant/accused on the ground that the present applicant has been assigned the role of mere presence at the place of incident and instigation to the co-accused Ghulam Hussain who has been attributed the vital role in the offence in view of the case-law reported in 2017 SCMR 279.

5. I have heard the learned counsel for the applicant/accused, learned DPG for the State and have perused the record. Admittedly as per FIR the allegation against the present applicant is that he was empty handed and was only shown to be present at the place of incident with further role of instigation to the main accused Ghulam Hussain but has caused no harm to anybody, hence his mere presence has been shown at the place of incident, thus his case cannot be equated with the co-accused Ghulam Hussain who has made direct fire upon the deceased Mst. Jaral, as a result thereof she died at the spot. The applicability of Sections 114 PPC would be determined at the trial after recording of evidence. The case has been challaned and the applicant is attending regularly. In view of the above circumstances, the interim pre-arrest bail granted to the applicants on 08.08.2017 is hereby confirmed on same terms and conditions. The applicant/accused is directed to attend the trial Court regularly, if the applicant failed to appear before the trial Court, the trial Court would be at liberty to take action against the applicant and his surety in accordance with law. The above observations are tentative in nature and will not affect the case of either party at the time of trial.

Judge

ARBROHI