IN THE HIGH COURT OF SINDH BENCH AT SUKKUR
Crl. Bail Application No.S-484 of 2019.
Crl. Bail Application No.S-566 of 2019.
Crl. Bail Application No.S-584 of 2019.
Crl. Bail Application No.S-720 of 2019.
|
DATE
OF HEARING |
ORDER WITH
SIGNATURE OF JUDGE |
For
the hearing of bail application.
Date
of hearing 20.01.2020.
Mr. Zameer
Ahmed Memon Advocate for applicants in Crl. B.A. No.S-484/2019.
Mr. Ali Akber
Shar, Advocate for applicants in Crl.B.A. No.566 & 584/2019.
Mr. Mashooque
Ali Ghanghro, Advocate for the applicant in Crl. B.A. No.S-720 of 2019.
Mr. Naeemuddin
Z. Qasmi, Advocate for complainant
Mr.
Khalil Ahmed Maitlo DPG for the state.
***************
O R D E R
ZULFIQAR ALI SANGI, J; Through this common order all the
above bail applications are being decided which arising from same and one FIR,
in bail application No: S-484 of 2019, applicants Arbab Ali, Deedar Ali, Abdul Khalique, Azam, Mohammad Ibrahim, Hakim
Ali, Ghulam Hyder, Mujahid, Inayat Ali, Taqi Mohammad, Shafi Mohammad, Ali
Raza, Mohammad Saleem, Khurshed, Abdul Majeed alias Manzoor, Mohammad Ali,
Mohammad Ramzan, Maqbool, Waseem and Aftab and in bail application No: S-584 of
2019, Applicants Wakeel and Sikandar Ali seek pre-arrest bail, Applicant Ayaz
Ali Mojai in bail application No: 720 of 2019 and applicants namely Mehtab Ali
and Imtiaz Ali in Bail application No: S-566 of 2019 seeks their post-arrest
bail in Crime No.72/2019 registered at Police Station, Setharja District, Khairpur
for offence under Sections 447, 337A(i),
337F(i), 337H(2), 114, 147, 148, 148 PPC and thereafter section 302 was added
after the death of one injured Azahar. Earlier their bail applications were
declined by learned Additional Sessions Judge, Thari Mirwah vide order dated 30.08.2019,
23-10-2019 and 18-11-2019.
2. The
facts in brief necessary for disposal of instant bail applications are that on
15.08.2019 at 1900 hours complainant Rashid Ali lodged FIR at Police Station,
Setharja stating that land of complainant and his relative Ali Nawaz Mojai is
situated in deh Chutto Wandiar bearing S.No.654,655 ad-measuring 15 acres and
13 Ghunta and the said land was purchased from Mohammad Soomar, Shafi Mohammad
and Ghulam Shabir Mojai on which Arbab Ali and Khalique Dino were annoyed and
they time and again asked complainant that it is not good for him. It is stated
that said Arbab Ali filed a civil suit before Senior Civil Judge, Mirwah
through his mother Mst. Shana and on 14.08.2019 complainant received
information that Arbab Ali had forcibly occupied the land and construct hut
over there. On receiving such information complainant along with his relative
Noor Mohammad and Imtiaz Ali went to their land and saw Arbab Ali occupied the
land was constructing hut over there, complainant restrained him to vacate the
land and not to construct hut but he did not pay any heed. At about 0530 hours
accused Arbab Ali with Pistol, Deedar, Khalique Dino, Azam, Mohammad Ibrahim
all three armed with lathis, Hakim Ali, Ghulam Hyder, Mujahid, Imtiaz Ali,
Inayat Ali, Wakeel, Sikandar, Shakeel Ahmed, Suhail Ahmed, Taqi Mohammad, Shafi
Mohammad, Safeer, Ali Raza, Mohammad Saleem, Ayaz Ahmed, Khursheed Ahmed armed
with hatchet, Manzoor, Mohammad Ali, Mehtab Ali, Mohammad Ramzan, Maqbool,
Waseem, and Aftab all armed with lathis came there and on coming they gave
hakals to complainant party why they come at the land. The accused Mohammad
Ibrahim and Hakim Ali instigated other accused not to spare complainant party
on their instigation co-accused caused lathi blows to complainant and they
raised cries, on their cries Khadim Hussain, Azhar Ali, Hakim Ali, Rabnawaz,
Toufique Ali, Shahnawaz, Illahi Bux, Gul Munir, Mohammad Achar, Dr. Safia, and
Mst. Hafeeza Khatoon came running at the place of the incident. The accused
Shakeel and Suhail caused lathi blows upon Mst. Safia on her hand and head
while accused Manzoor caused lathi blows upon Mst. Hafeeza on his legs and they
also caused lathi and hatchet blows upon them. The accused Arbab Ali made
aerial firing upon them intending to create harassment. The complainant party
gave them the oath of the Holy Quran to them and then they left the complainant
party and illegally occupied the land. The complainant brought injured at
Police Station obtained letter for medical treatment and after getting
treatment from Taluka Hospital Thari Mirwah appeared at the Police Station
where he lodged FIR.
3. Learned
Counsel for applicants contends that the applicants have falsely been involved
in this case by the complainant with ulterior motives; that the main
allegations are against co-accused Shakeel and Suhail for causing injuries to
the deceased who have not filed bail application; that the names of injured
persons are not mentioned in the FIR; that further statement of complainant was
recorded on 17-8-2019 in which he disclosed the names of witnesses; all the
injuries are bailable; general role has been assigned to the applicants; that
applicant party also wants to register counter FIR but police not registered
the same; that applicant party also filed application under section 22-A, B
Cr.P.C which was dismissed; lastly all the counsel for applicants in all above
bail applications prays for grant of bail.
4. Learned
Deputy Prosecutor General appearing for the State assisted by learned counsel
for complainant contended that promptly FIR was registered; that 09 innocent
person received injuries in the incident; that all injured were mercilessly
beaten by the accused person to which one young boy of 15 years namely Azhar
lost his life; that oral account is supported by medical; that applicants
committed heinous offence of murder and causing injuries to 09 persons; however
learned DPG conceded the fact that all injuries on the person of all injured
were declared by doctor punishable up to 05 years. Lastly, they pray that the bail
applications of applicants may be dismissed.
5. Heard
arguments of learned Counsel for the parties and perused the record with their
able assistance.
6. The
role against the applicants Hakim and Muhammad Ibrahim is of instigation, Shakeel
and Suhail (not filed bail application) caused lathi bellows to Azhar (Deceased),
Deedar and Khalikdino caused lathi bellows to Khadim Hussain, Khursheed caused
lathi below to Safia, Manzoor caused Lathi below to Hafeeza Khatoon, and against
all the accused role is of general nature that they all caused hatchet and
lathi bellows to complainant and other witnesses.
7. Final
medical certificates issued by the doctor available with DPG in the police
papers showed that all the injured received injuries that are bailable and some
are not bailable but the same does not fall within the prohibitory clause of
section 497 (1) Cr.P.C. The injuries received by the injured witnesses declared
by the doctor are as under:-
( As mentioned in the certificates )
1. Illahi
Bux: Injury No:1 as shujah-e-Khafifah Injury, No:2 as Jarah Ghayr Jaifah damiyah
2. Toufique
Ahmed: Injury No:1 Shujah-e-Khafifah
3. Khadim
Hussain: injury No:1 to 4 Shajah-e-Khafifah
4. Hakim
Ali: injury No:1 as Shijah-e-Mudiha
5. Safia:
injury No:1 as Shjjah-i-Khafifah, injury No:2 Jurh Ghayr Damiya
6. Hafiza:
injury No:1 and 2 as 337-Lii other hurts
7. Gul
Muneer: injury No:1 as Shujah-e-Khafifah
8. Rabnawaz:
injury No:1 as Shujah-e-Khafifah
9. Shahnawaz:
injury No:1 as Shujah-e-Khafifah
In the case of FAQIR HUSSAIN alias Bali V., The
STATE and others (2014 S C M R 1502) Honourable supreme court of
Pakistan has held as under:-
After
hearing the learned counsel for the parties at some length and going through
the record of investigation with their assistance we have found that the first
allegation levelled against the petitioner in the F.I.R. was that he and his
co-accused had collectively given a beating to Kaleem Ullah and Sami Ullah
P.Ws. According to the medical evidence collected during the investigation all
the injuries sustained by the said injured victims attracted offences which are
bailable. The next allegation levelled in the F.I.R. was that a co-accused of
the petitioner namely Ishfaq had given an injury to Rehan deceased with the
butt of his rifle and it is admitted at all hands that the petitioner had not
caused any injury to the deceased at all. The third allegation levelled in the
F.I.R. was that the petitioner and his co-accused had abducted Rehan deceased
and we have noticed in this context that the provisions of section 365, P.P.C.
were neither invoked in the F.I.R. nor any charge has so far been framed
against the petitioner for such an offence. Apart from that during the
investigation it had been found by the investigating agency that the story
regarding abduction of the deceased by the petitioner and his co-accused was
unfounded and this is so mentioned in the report submitted under section 173,
Cr.P.C. The fourth and the last allegation levelled in the F.I.R. was that the
petitioner and his co-accused had made Rehan deceased to drown in a nearby
river but even that part of the story was found by the investigating agency to
be untrue and this finding of the police is also specifically recorded in the
report submitted under section 173, Cr.P.C. The investigation of this case has
already been finalized and a Challan has been submitted and, thus, physical
custody of the petitioner is not required at this stage for the purposes of
investigation.
7. The
incident took place on 14-8-2019 and the investigation officer visited the
place of wardat on 16-8-2019 wherefrom recovered two bloodstain lathies and
some bloodstain pieces of bricks, the recovery after two days from the place of
wardat creates some doubt. A further statement of complainant was recorded on
17-8-2019 wherein he improved the story and added names of the witnesses and
shown them as injured of the incident whereas in the FIR their names were not
disclosed by the complainant.
8. Complainant
himself present and place on record the copy one entry No: 29-2145 dated:
14-3-19 which show that police referred the injured to the doctor; in the last
of said entry another entry is available which also shows that some other
persons were also referred by the police to the doctor for treatment. These
entries do not speak about the details of incidents nor were the names of the
accused mentioned in the said entries. The time of its recording is also 2145
and 2150 hours whereas in the FIR time of incident shown by the complainant is
1730 hours, all these circumstances make the case one of further inquiry.
9. It is the
well-settled principle of law that deeper appreciation of evidence is not
permissible under the law and the bail applications are to decided tentatively based
on material available in the record. The material includes FIR, statements
under section 161 Cr.P.C and medical evidence and other material whatever
collected by the investigation officer during the investigation, all these things
are to be assessed tentatively.
10. Form the
tentative assessment of material available on the record I am of the view that
applicants made out their case for grant of bail, therefore all applicants who
have applied for pre-arrest bail their bail applications are allowed and interim
bail already granted to them by this court is confirm on the same terms and
conditions. The applicants who have applied for their post-arrest bail, their
bail applications are allowed, they should be released on furnishing solvent
surety in the sum of Rs.100000/ each and PR bonds in the like amount to the
satisfaction of the trial court.
11. In the
above terms, all the applications are disposed of along with listed
applications.
12. These
the reason for my short order dated: 20-01-2020.
J U D G E