Order Sheet

IN THE HIGH COURT OF SINDH, BENCH AT SUKKUR

Cr. Bail App. No. D – 395of 2019

Before :

Mr. Justice Abdul Maalik Gaddi

Mr. Justice Arshad Hussain Khan

Date of hearing : 31.07.2019.

Applicant / accused Muhammad Din, present in person.

None present for the complainant.

Mr. Abdul Rehman Kolachi, Deputy Prosecutor General for the State.

O R D E R

ABDUL MAALIK GADDI, J.–Applicant / accused Muhammad Din is present on interim pre-arrest bail granted to him by this Court vide order dated 18.07.2019. Today, this bail application is fixed for confirmation or otherwise.

2. Brief facts of the case are that complainant possesses agricultural land which is being cultivated by him. Allegedly, accused party belonging to Narejo community has been demanding Bhatta since 2017 from the complainant party and on their refusal, they had murdered close relatives of the complainant namely Ghulam Sarwar, Ahmed alias Karim Bakhsh and Mujahid Hussain; such cases are registered at Police Stations Faiz Muhammad Narejo and Piryaloi. It is further alleged that on 18.06.2019, complainant Muhammad Yaqoob, his brother Muhammad Raheem and cousin Lal Bakhsh went to their agricultural land for looking after and stayed at their Otaq which is situated in their land. At about 06:00 p.m. they saw accused Abdul Rasheed, Bashir Ahmed, Wahid Bakhsh alias Wahid, Muhammad Din (present applicant / accused), Ghulam Akbar, Liaqat Ali armed with Kalashnikovs, Muhammad Saleem, Qamaruddin armed with repeaters, Naveed, Akhtiar armed with G-3 and six unknown persons armed deadly weapons. They raised their weapons upon complainant party. Owing to fear, complainant party remained silent and moved towards their banana garden. Accused party made aerial firing and created panic and terror. Complainant party, taking the shelter of banana garden, reached their village where made consultation with Nek Mard.Next morning, they went to their agricultural land along with villagers / witnesses and found tube wells of the complainant, his cousins namely Saeed Ahmed, Abdul Jabbar and Amanullah in dismantled condition, hence, this FIR.

3. It is stated by the applicant that he is innocent and has falsely been implicated in this case by the complainant with malafide intention and ulterior motives; that he has nothing to do with the present crime; that complainant lodged the instant FIR with the delay of one (01) day without any plausible explanation; that no specific role has been attributed to him; that Section 384 and 427 PPC are bailable while Section 7-ATA, 1997 is misapplied in the FIR by the police; that another FIR of same nature bearing Crime No. 22/2019 of P.S Faiz Muhammad Narejo has been lodged by another complainant against him which creates doubt in the present case, therefore, he prayed that interim order already granted in his favour may be confirmed on same terms and condition.

4. None present on behalf of the complainant, however, learned DPGin view of the submissions made by the applicant has recorded his no objection for confirmation of the bail.

5. We have considered the arguments of the parties and perused the record so made available before us.

6. On perusal of FIR, it appears that enmity in between the applicant and complainant party is apparent. FIR is also delayed by one (01) day, therefore, false implication of the present applicant in this case with due deliberation and consultation cannot ruled out. The allegation against the present applicant / accused is that the applicant belongs to Narejo community and since 2017, the present applicant used to demand Bhatta amount from the complainant party, but nothing on record that on which date and before whom Bhatta was demanded. It is also alleged that on 18.06.2019 when complainant along with his brother Muhammad Raheem and cousin Lal Bakhsh were available in their Otaq, present applicant duly armed with Kalashnikov along with other accused with deadly weapons came there and have made aerial firing to create panic and terror in the area, but nothing on record whether the present applicant along with other accused have made straight firing upon complainant party. No person from complainant party has received any injury or scratch due to firing of the applicant, therefore, under these circumstances it is yet to be determined at the time of trial whether the present applicant along with other accused have made firing upon complainant with intention to commit their murder or otherwise. Till then, in our view case of the applicant requires further probe.

7. We have noted that the offences under Section 384 and 427 PPC are bailable and punishment of the said offences as provided under the law does not fall within the prohibitory clause of Section 497 Cr.P.C. No specific role has also been attributed to present applicant / accused, therefore, the applicability of Section 7-ATA, 1997 in this case would also be determined by the trial Court. We have also noted and astonished that almost on the same facts and allegations, another FIR being Crime No. 22/2019 of Police Station Faiz Muhammad Narejo has also been lodged by another complainant namely Qamaruddin against the present applicant and the incident shown in the said FIR was occurred after the delay of one (01) hour of the incident mentioned in the present FIR bearing No.21/2019 of Police Station Faiz Muhammad Narejo. When all these aspects of the case were confronted to learned DPG, he has no answer with him, however, he has given his no objection if the interim order dated 18.07.2019 granting bail to present applicant is confirmed.

8. In view of the above, we have come to this conclusion that the present applicant has made out a case for confirmation of the bail. We accordingly, confirm the interim order dated 18.07.2019 on same terms and conditions with direction to the applicant / accused to appear before the trial Court and face the trial. Needless to mention here that any observation in this order is tentative in nature and shall not affect the merit of the case.

9. Before parting with the order, we would like to make it clear that in case, during the trial, if the applicant / accused misuses the bail then trial Court would be competent to cancel the bail of the applicant / accusedwithout making any reference to this Court.

10. Criminal Bail Application stands disposed of in the above terms.

J U D G E

Abdul Basit