IN THE HIGH COURT OF SINDH, CIRCUIT COURT, LARKANA

Criminal Bail Application No. S- 426 of 2020

Applicant:                                 Sahab Khan Junejo, Through         Mr. Abdul Hakeem Brohi, Advocate,

Complainant:                            Abid Hussain Junejo, through         Mr. Ghulam Rasool Junejo, Advocate.

The State:                                Through Mr. Muhammad Noonari, Deputy Prosecutor General.

Date of hearing:                        07-12-2020

Date of order:                           07-12-2020

O R D E R

Zulfiqar Ali Sangi, J.-   Applicant Sahab Khan Junejo, seek his post arrest bail in Crime No.14/2020, registered at Police Station Waris Dino Machi, for offence under sections 302, 324, 337-A(i),F(i),114, 504,148,149 PPC. Earlier his bail application was declined by learned Additional Sessions Judge, Ratodero vide order dated 24.07.2020.

2.                Brief facts of the case as per FIR lodged by complainant Abid Hussain on 07.06.2020, at 1730 hours at P.S W.D.Machi, are that on 03.06.2020, hedge of house of complainant was set on fire, on that day they had also exchanged harsh words with Sahab Khan and others, as such they were annoyed. On 04.06.2020, he along with Deedar Hussain (father), Sadam Hussain (brother), Rashid Khan, Darya Khan and Arz Mohammad (cousins) were standing in the land, situated near their houses. According to him at 06:30 a.m they noticed accused Sahab Khan armed with lathi, Asif armed with gun, Mujeeb armed with repeater, Manzoor armed with gun, Mazhar armed with repeater, Naban, Aslam, Ghulam Ali all Junejo by caste armed with lathies. The accused Sahab Khan instigated to accused person, on that accused Asif caused gunshot on Sadam Hussain at left leg, while accused Mazhar made repeater shot on Sadam Hussain at left leg, while accused Manzoor made gunshot on Rashid on right hand palm. Thereafter, all accused gave butt blows and lathi blows to the witnesses. The villagers rushed on their cries and firing, therefore, accused person went away towards their houses while abusing. They found Sadam Hussain having fire shot below at knee joint and at calf of left leg and was exit wound. The injured Rashid Hussain sustained fire shot injury on right hand palm and on index finger, while Deedar Hussain and Arz Mohammad sustained injuries on their heads and were bleeding. Thereafter, complainant brought the injured at P.S with the help of co-villagers and obtained letter for treatment and brought them at Taluka Hospital Ratodero, wherefrom Deedar Hussain, Sadam Hussain and Rashid were referred to CMCH Larkana for better treatment. After first aid injured Sadam Hussain was referred to Karachi Civil Hospital. The complainant left the injured Sadam Hussain at Civil Hospital Karachi and rushed at P.S, where lodged FIR.

3.                Mr. Abdul Hakeem Brohi, Advocate for the applicant contended that there is inordinate delay of 04 days in lodging the FIR, for which no plausible explanation has been given by the complainant; that there is only role of applicant/accused of instigation and only his presence is shown at the place of incident. The counter F.I.R case/crime No.15/2020 of P.S Waris Dino Machi was registered against the complainant of present case and in such dispute fire shot injuries sustained to Ghulam Ali and Mansoor Ali at the hands of complainant party namely Abid Hussain, Akbar and Sadam, while accused Deedar instigated to the culprits and such FIR No.15/2020 was registered against them. He further contended that all the P.Ws are close relatives of the complainant, hence they are interested and setup and no any independent person is cited in the list of witnesses. He further contended that injured Deedar succumbed the injuries, hence I.O of this case inserted the section 302 PPC in the challan sheet, hence false implication of applicant/accused cannot be ruled out under the facts and circumstances of the case. He further submits that the case of applicant/accused requires for further inquiry as envisaged under Section 497 Cr.P.C. Lastly he prayed for grant of bail to the applicant/accused. He relied upon the cases of Abdul Hameed v. Zahid Hussain @ Papu Chaman Partiwala & others (SBLR-2012 SC 129) and Gul Din v. The State and another (2011 SCMR-1997) and Qurban Ali v. The State and others (2017 SCMR 279).

4.                Mr. Muhammad Noonari, learned DPG submitted that name of applicant is mentioned in the FIR with specific role; that complainant and PWs are supporting the prosecution case; in this incident one person has lost his life and one has lost his leg; that presence of applicant is not denied; that lathi was recovered from the possession of applicant/accused. In these circumstances, he requests that bail application filed by the applicant may be dismissed.

5.       Mr. Ghulam Rasool Narejo, learned counsel for complainant has argued that applicant/accused is nominated in the FIR with specific role. The delay in the registration of FIR was fully explained by the complainant in the FIR, as he remained busy, while shifting the injured to Civil Hospital Karachi as well as other injured to CMCH Larkana. The role against applicant/accused is that he had instigated the other culprits, on that accused Asif and Mazhar fired gunshot/repeater shots at Sadam Hussain, while accused Manzoor caused gunshot at Rashid and on his instigation other accused, including present applicant/accused caused but blows of guns, repeaters and lathies blows on the witnesses. He further contended that injured Sadam Hussain was referred to Civil Hospital Karachi for better treatment, but his leg was imputed. The provisional MLC of injured Deedar reveals that he had sustained 04 injuries and postmortem report of deceased Deedar also reveals that death occurred by causing hard blunt substance. The recovery of lathi has been affected from the possession of applicant/accused and the ocular version is supported by the medical evidence. The applicant/accused is principal accused, therefore on his instigation, he and other accused caused lathies, guns and repeaters blows to the witnesses. He further contended that eye-witnesses have fully implicated to the applicant/accused for the commission of an offence and sufficient material is available on the record to connect the accused in the commission of alleged offence. Lastly he prayed for rejection of bail of applicant/accused.

06.      I have heard learned advocate for applicant/accused advocate for complainant and learned DPG for the State and have gone through the material available on record with their able assistance.

07.       Perusal of record reflects that role of applicant/accused is that firstly he had instigated the other accused on such co-accused Asif and Mazhar fired gunshot/repeater shots at Sadam Hussain, while accused Manzoor caused gunshot at Rashid and rest of culprits, including present applicant/accused caused lathi, guns and repeaters blows on the witnesses namely  Rashid, Deedar Hussain, Darya Khan and Arz Mohammad. Admittedly present applicant/accused was armed with lathi at the time of alleged offence, while remaining culprits were armed with guns and repeaters. The postmortem of Deedar also reveals that cause of death occurred due to hard blunt substance. Applicant/accused was armed with lathi as well as co-accused were armed with lathies, guns and repeaters had caused butt blows to the all witnesses, therefore, in the alleged offence one innocent person has lost his life. The conduct of applicant/accused shows that he along with co-accused came at the land of complainant situated near their houses and had brutally beaten to Sadam Hussain, Rashid, Deedar Hussain, Darya Khan and Arz Mohammad and finally Deedar succumbed injuries and lost his life at the hands of accused person, including present applicant/accused. The spur movement of applicant/accused showing that he along with co-accused gathered armed with lathi and on simple matter of set fire, to which Sahab Khan and others were annoyed and on this issue had brutally attacked upon the complainant party, resultantly Deedar (father of complainant) succumbed the injuries. The tangible and sufficient evidence is available on record, which showing the spur movement of applicant/accused, so that such incident took place and innocent person lost his life. The medical evidence is in line with ocular account as narrated by the complainant in his F.I.R and role of applicant/accused is clear as he instigated to co-accused as well as inflicted lathi blows to deceased Deedar and eye-witnesses who sustained lathi blows, butt blows of guns and repeaters in the alleged offence. As such applicant/accused has played main role in commission of heinous offence.

8.         Contentions of learned counsel that counter FIR was registered against the complainant party by the applicant party therefore it is to be determined after recording the evidence that which party was aggressor and this ground alone is sufficient to grant bail to the applicant, has no legal force in view of the fact that the applicant is nominated in FIR with specific role that he had instigated the culprits, so also he himself used the lathi in the commission of offence and the same was recovered from his possession and actively participated in the alleged incident. In case of Nasrullah Khan v. Mst. Bas Khandana and another (1997 MLD-2071), it has been held by the Hon'ble Court that;

"Ss. 497/498---Bail---Counter version---Counter version by itself cannot be pressed into service as of right for grant of bail unless there is a scope of further inquiry in the matter".

            In case of Imranuddin and another v. The State (1983 SCMR 278), it has been held by the Hon'ble Court that;

      "Mere fact that; in cross-case persons charged for having caused injuries have been released on bail---Held no ground for releasing petitioners on bail particularly when allegations against them are more serious."

            In case of ARBELO and 2 others V. The STATE (2013 P Cr. L J 1155), it was held by this court that;

----S. 497---Bail, right of---Scope---Case of counter-versions---Plea was that bail should be allowed in every case which had a counter-version---Validity---Rule that bail must be granted in every case of counter-version was not a hard and fast rule, and each case had to be examined on its own facts and circumstances.

 9.     It is settled principal of law that deeper appreciation of evidence is not permissible while deciding the bail plea of the accused and material collected during investigation is to be assessed tentatively. From the tentative assessment of material available on the record in shape of FIR, statements of the witnesses recorded under section 161 Cr.P.C, medical evidence including the recovery of the lathi from the applicant Prima facie, there appears sufficient evidence/material against the applicant which connect him with the commission of offence in which one innocent person has lost his life and one persons has lost his leg and other witnesses have received injuries, therefore, the applicant is not entitled to the concession of bail. Resultantly the bail application of the applicant is dismissed.

10.     The observations made hereinabove are tentative in nature and shall not prejudice the right of either party at the trial.

J U D G E

Syd Ashfaq/-