IN THE HIGH COURT OF SINDH, CIRCUIT COURT,LARKANA

Cr. Bail Application No.S-422of 2020

Applicant:                                Hafizullah s/o HidayatullahBangulani,

Through Mr. Saeed Ahmed Bijarani,

Advocate.

Complainant:                           Muhammad Raheem s/o Zareen Khan Nindwani,

Through Mr. Ashfaq Hussain Abro,Advocate.

State:                                       Through Mr. Muhammad Noonari,

Deputy Prosecutor General.

Date of hearing:                       07-12-2020

Date of Decision:                      07-12-2020

O R D E R

ZULFIQAR ALI SANGI, J.- Through the captioned bail application, applicantHafizullah son of HidayatullahBangulaniseeks his post arrest bail in Crime No. 36/2020, registered at Police Station Karampur, for the offences U/S 302,324,337-H(2),114,148,149 P.P.C. Earlier his bail application was declined by the learned Sessions Judge, Kashmore @ Kandhkot, vide order dated 25.07.2020.

2. As per F.I.R, on the day of incident the complainant along with Bashir Ahmed, Manzoor Ahmed and Bahadur was going to Ghouspur, at about 08-30 a.m, when they reached near Arbab Ogahi curve, where they saw accused Imtiaz, Khadim, Mubarak, Sallah, Hafizullah, Sabzal and two unknown accused persons armed with T.T pistols came there and challenged the complainant party, thereafter accused Imtiaz directly fired from T.T pistol at Bahadur on his abdomen, accused Mubarak also fired at Bahadur on his right arm, accused Khadim fired from T.T pistol at Bashir Ahmed at his thigh of left leg, they fell down raising cries, thereafter all the accused persons went away while firing in air. The complainant party shifted both injured persons Bahadur and Bashir Ahmed to the hospital but the injured Bahadur succumbed to the injuries on the way, thereafter the complainant appeared at P.S. and lodged the F.I.R.

3. Learned counsel for the applicant submits that there is delay of one day in registration of F.I.R which has not been explained by the complainant; that no specific role has been assigned to the present accused regarding injuries to deceased Bahadur or injured Bashir as it is mentioned in the F.I.R that deceased Bahadur received fire arm injuries at the hands of co-accused Imtiaz and Mubarak and P.W Bashir Ahmed sustained fire arm injury at the hands of accused Khadim; that mere presence of the applicant/accused has been shown in the FIR; that co-accused Sabzal and Salleh were found innocent during investigation and their names were placed in column No2 of the charge sheet, hence the case of prosecution has become of two versions; that nothing incriminating article was recovered from the possession of applicant. Learned counsel, therefore, prayed for grant of post arrest bail to the applicant/accused.

4. Learned counsel for the complainant has contended that this is case of heinous offence in which one person has been murdered and one has been injured by the accused persons and the present applicant/accused has shared his common object regarding participation in commission of offence; that all the prosecution witnesses have supported the version of complainant in their statements U/S 161 Cr.P.C and implicated the applicant/accused in the offence; that medical evidence supports the version of ocular evidence; that empties were collected by the investigation officer from the place of vardhat during the course of investigation. He has prayed that bail application may be dismissed.

5. Learned D.P.G. has also opposed the grant of bail stating that this is heinous offence in which one person lost his life and other person received injuries.

6. I have considered the submissions of learned counsel for the parties and have gone through the material available on the record with their able assistance.

7. Admittedly the name of the applicant/accused is mentioned in the F.I.R but no specific role of causing injury to the deceased Bahadur or injured Bashir Ahmed has been assigned to the present applicant/accused except his presence has been shown at the place of incident to be armed with T.T pistol. The deceased Bahadur received fire arm injuries at the hands of co-accused Imtiaz and Mubarak and P.W Bashir Ahmed sustained fire arm injuries at the hands of accused Khadim. In absence of any other connecting material, mere presence would not be sufficient for keeping an accused behind the bars particularly when parties have been at admitted murderous enmity and FIR is delayed for about 27 hours without any plausible explanation. In such like situation the question of sharing common intention would be decided after recording evidence of the prosecution witnesses by the trial courts.

8. The applicant is behind the bars since the day of incidence i.e. 21.04.2020 and no witness has been examined by the prosecution before trial Court.  Prima facie, the investigation of this case has already been finalized and a challan has been submitted and thus, physical custody of the applicant is not required at this stage for the purpose of investigation. It is well-settled principle of law that no one can be detained for an indefinite period without progress in trial merely for reason that his name is mentioned in the F.I.R.

9. In the instant case no specific injury has been attributed to the applicant. Therefore, looking to the above circumstances, the instant application is allowed.  The applicant is admitted on post arrest bail subject to his furnishing solvent surety in the sum of Rs.200,000/- (Rupees two hundred thousand) and PR bond in the like amount to the satisfaction of learned trial court.        

10. Needless to mention that the findings given above will not affect the trial Court of the case in any manner and the trial Court shall not be influenced from above order.

J U D G E

Abdul Salam/P.A