ORDER SHEET

IN THE HIGH COURT OF SINDH BENCH AT SUKKUR

Cr. Bail Application No. S-387 of 2016.

 

Date

               Order with signature of Judge

                                       Present

                                       Mr. Justice Amjad Ali Sahito.

Applicants:               Atta Muhammad son of Ali Khan,  through Mr. Sher Muhammad Shar Advocate.

                                  1. Ghulam Shabbir alias Shabbir son of Arbab Ali

                                  2. Rafique Ahmed son of Shahnawaz

                                  3. Shahid Hussain son of Ghulam Mustafa, through Mr. Wasim Raja Leghari Advocate.

Complainant.            Mst. Khairan wife of Mir Muhammad Mugheri, through Mr. Saeed Jamal Lund, advocate.

 

Respondent                 The State, through Mr. Abdul Rehman Kolachi, Deputy Prosecutor General.

 

Date of hearing.        29-10-2018.

Date of decision.       29-10-2018.

 

O R D E R.

 

AMJAD ALI SAHITO, J.- Through the instant bail application, applicants/accused Atta Muhammad Shar, Ghulam Shabbir alias Shabbir Bhanbhro, Rafique Ahmed Soomro and Shahid Hussain Rind seek pre-arrest bail in Crime No.  83 of 2015 for the offences u/s 302, 395 P.P.C registered with police station Hingorja. Prior to this, his pre-arrest bail application of the applicants/accused was declined by learned Additional Sessions Judge Gambat vide order dated 15-06-2016, hence they have filed the instant bail application.

2.      Briefly, the facts of the prosecution case are that complainant Mr. Khairan lodged the F.I.R. on 25-05-2015 alleging therein that on 27-02-2015 she along with her family members were present in the house. At about 3-30 am several police officials namely Mir Imdad Hussain Talpur S.H.O PS Mirwah, HC Shabbir Bhanbhro of PS Mirwah, Rafique Ahmed Pathan S.H.O PS Setharja, HC Atta Muhammad Shar of PS Setharja, PC Shahid Hussain Rind of PS Setharja, Amir Pathan S.H.O PS Hingorja and 10/12 unidentified police personnel armed with official weapons entered into the house and overpowered upon the complainant party and caused them butt blows and dragged Ayaz Muharram and Punhal sons of the complainant forcibly. They also broken the locks of iron box and robbed cash Rs. 20,000/- golden ornaments, mobile phones, goats and one cock and scattered the household articles and taken away the sons of the complainant and confined them at police station Hingorja. Complainant along with Ayaz and Mir Muhammad went to PS Hingorja and at 5-00 am time, accused took out his son Muharram and on the instigation of accused Mir Imdad Talpur and Amir Pathan, accused Shabbir Bhanbhro and Atta Muhammad Shar made straight fires upon Muharram Ali and committed his murder. The complainant approached to high ups and then filed such application before Ex-Office Justice of Peace for registration of and after getting an order from the Court, she appeared at the police station and lodged the above said F.I.R.

3.      It is, inter-alia, contended by the learned counsel for the applicant/accused Atta Muhammad that applicant/accused is innocent and has falsely been implicated in this case by the complainant; that there is delay of about 3 months in lodgment of the F.I.R and such delay has not been plausibly explained by the complainant; that co-accused Mir Imdad Hussain against whom the NBWs were issued by the trial Court, but the same were converted into BWs and accused was directed to furnish surety in the sum of Rs. 50,000/-; that after conducting the investigation, the case was disposed of under "B" class, but the same was not challenged by the complainant party; that prior to this an F.I.R No. 35/2015 was registered by Amir Pathan S.H.O PS Hingorja wherein the son of the complainant was killed during encounter, therefore, the false implication of applicant/accused cannot be ruled out and his guilt requires further enquiry and he is entitled for concession of pre-arrest bail.

4.                Learned counsel for applicants/accused Ghulam Shabbir alias Shabbir, Rafique Ahmed and Shahid Hussain mainly contended that applicants/accused are innocent and have falsely been implicated in this case; that PW Ayaz was in lockup and such mashirnama of arrest being annexure-J at page No. 95 is available as such he is not the eyewitness of the incident; that applicants/accused have not misused the concession of pre-arrest bail. He lastly prayed that it is fit case for further enquiry and interim pre-arrest bail already granted to the applicants/accused may be confirmed.

5.                On the other hand learned counsel for complainant submitted that this is a case of two version, which will be decided  by the trial Court that which version is correct; that all the witnesses have supported the version of complainant, therefore, he prayed for dismissal of bail application.

6.                Learned DPG for the State has also opposed for confirmation of interim pre-arrest bail to all the applicants/accused on the ground that PW Mir Muhammad has fully implicated the applicants/accused and supported the version of the complainant; that name of applicants/accused appeared in the F.I.R. with specific role; that delay has properly been explained by the complainant.

5.                I have considered the submissions of the learned counsel for the applicants/accused, learned counsel for complainant, learned DPG for the State and have gone through the material available on the record.

6.                It is an admitted position that the names of the applicants/accused find place in the F.I.R. with specific role that on the instigation of accused Mir Imdad Ali and Amir Pathan, accused Shabbir Bhanbhro and Atta Muhammad Shar directly fired upon the deceased Muharram, resultantly a young man has lost his life. Furthermore, PW Mir Muhammad in his statement u/s 161 Cr P C has fully supported the version of complainant and medical report shows that the death of deceased Muharram Ali is unnatural one. The delay has properly been explained by the complainant as she has filed an application before the Ex-Office Justice of Peace/Additional Sessions Judge Gambat and after getting such order from the Court she appeared at police station and lodged the F.I.R against the police officials, who were posted at police station Hingorja. From the perusal of F.I.R, it appears that she tried her level best to lodge F.I.R, which took time and finally she has succeeded, hence delay has properly been explained. As far as disposal of case under "B" class, learned DPG has rightly pointed out that F.I.R. was lodged against the police officials and I/O has not conducted fair investigation and has leaned in favour of his colleagues, but learned Magistrate took the cognizance, hence report u/s 173 Cr P C is not binding upon the Court. Sufficient material is available on record to connect the present applicants/accused in the commission of the offence, whereas, the offence with which the applicants/accused are charge entails capital punishment which falls within the prohibitory clause of Section 497 Cr.P C. At bail stage only tentative assessment is to be made.

8.                In view of the above, the instant pre-arrest bail application is dismissed and the interim order dated 20-06-2016 granted to the applicants/accused is hereby recalled.

9.                     Needless, to mention that the observations made hereinabove are tentative in nature and would not prejudice the case of either party at trial.                             

                                                                                               Judge

 

Nasim/P.A