IN THE HIGH COURT OF SINDH, CIRCUIT COURT, LARKANA
Criminal Bail Application No. S-233of 2020
Applicants: Imran Khan and Imtiaz Ahmed,
Through Mr. Asif Ali Abdul Razak Soomro, Advocate.
Complainant: Nawab Khan Bhayo,
Through Mr. Athar Abbas Solangi, advocate.
State: Through Mr. Muhammad Noonari,
Deputy Prosecutor General.
Date of hearing: 05-11-2020 & 19-11-2020
Date of Decision: 19-11-2020.
O R D E R
ZULFIQAR ALI SANGI, J.- Through the captioned bail application, applicants Imran Khan and Imtiaz Ahmed both sons of Ayaz Ahmed Bhayo, have sought for pre-arrest bail in case, emanating from F.I.R. No.12/2020, registered at Police Station Karan Sharif, for offences under Sections 302,324,311,148,149 P.P.C. Earlier their bail plea was declined by the learned III-Additional Sessions Judge, Shikarpur, vide order dated 27.04.2020.
2. Facts of the case are that the complainant Nawab Khan Bhayo lodged the F.I.R at P.S. Karan Sharif on 06.03.2020 at 1600 hours, stating therein that about 35/40 year ago Abdul Hafeez S/o Din Muhammad Bhayo had leveled false allegation of Karap upon his brother Sikandar Bhayo with his wife, on such Abdul Hafeez and Ayaz @ Malang, Imran and Imtiaz were issuing threats of murder of his brother. On 05.03.2020, he along with his nephews Kamran and Imran, relatives Lal Bux, Parvaiz, Mazhar Ali and Karamullah were chit-chatting in their otaque. At about 11-30 p.m, the electric bulbs were glowing, they saw the accused Abdul Hafeez S/o Din Muhammad with K.K, Amjad S/o Abdul Hafeez with Kalashnikov, Ayaz @ Malang S/o Haji Ali Murad with TT pistol and two unknown persons with open faces who could be identified if seen again with Kalashnikov and G-III rifle, came inside their Otaque. Accused Amjad fired from his Kalashnikov upon Kamran with intention to commit his murder, which hit him who fell down, accused Ayaz @ Malang fired from his pistol upon his relative Lal Bux which hit him, who fell down, accused Abdul Hafeez fired from his Kalashnikov upon Imran which hit him who fell down, one unknown accused fired from his Kalashnikov upon Parvaiz, which hit him who fell down. The complainant party found that Kamran and Lal Bux were dead having firearm injuries, while Parvaiz and Imran were seriously injured. The complainant party brought dead bodies and injured persons to Civil Hospital Shikarpur through police and after postmortem of deceased and funeral formalities the complainant came at police station and lodged such FIR against accused persons. Later-on injured Imran also succumbed to the injuries.
3. Learned counsel for the applicants submits that there is delay of one day in registration of FIR and the same has not been explained properly; that applicants were not present at the place of incident and no role has been assigned to them; that during course of investigation, the I.O recorded further statements of the complainant and his P.Ws, namely, Mazhar Bhayo and Karamullah, in which they have implicated the present applicants for instigation; that on 10.03.2020, the I.O examined P.W Imran Bhayo (who thereafter expired), who had improved the version of complainant by levelling allegations of threats, instigation and abetment against the applicants to have issued on 05.03.2020 at 09-00 p.m, then the alleged incident occurred at 11-30 p.m; that there is delay in recording statements U/S 161 Cr.P.C of P.Ws Pervez and Imran, for which no plausible explanation has been given. Learned counsel prays that the interim pre-arrest bail earlier granted to the applicants may be confirmed. In support of his contentions, he has relied upon the cases reported as Nisar Ahmed V. The State (2014 SCMR 27), Abdullah Khan V. Abdul Qayyum and another (1996 SCMR 493), Aamir Bashir and another V. The State and others (2017 SCMR 2060), Khalid Ahmed Soomro and others V. The State (PLD 2017 Supreme Court 730), Khalid Ahmed Khan Lund V. The State (PLD 2015 Sindh 20), Syed Amanullah Shah V. The State and another (PLD 1996 Supreme Court 241), Mst. Zahida Bibi V. The State (PLD 2006 Supreme Court 255), Alam Chand alias Aloomal and 2 others V. Jamil Ahmed and another (2008 SCMR 980), Mehmood Khan V. The State (2007 P.Cr.L.J 7520), Anwar Khan V. The State (2002 P.Cr.L.J 400), Muhammad Ramzan V. The State (1999 P.Cr.L.J 1333), Muhammad Riaz Minhas V. The State (1990 P.Cr.L.J 1353), Hussain Mustafa V. The State and another (2019 SCMR 1914), Subeh Sadiq alias Saabo alias Kalu V. The State and others (2011 SCMR 1543), Muhammad Iqbal and others V. The State and others (2011 SCMR 1943), Asfand Yar Khan and another V. The State and another (2020 SCMR 715) and Shabran Khan versus The State and another (2020 SCMR 974)
4. Learned counsel for the complainant opposed grant of bail by submitting that false implication or malafide has not been alleged against the complainant; that motive was not investigated by I.O properly; that affidavits were filed by complainant party that the applicants are issuing threats for withdrawal of the case; that P.W Imran in 161 Cr.P.C statement recorded on 10.03.2020 has shown the date and time of threats issued by the applicants stating that applicants issued threats to him on 05.03.2020, thereafter on 14.03.2020 he also died; that if the applicants enlarged on interim bail there is apprehension of misusing the bail and tampering with evidence. Learned counsel further submits that interim bail in trial court was rejected on 27.04.2020 and on same date they attacked upon the complainant party, for which F.I.R No.105/2020 has been registered against the applicants. In support of his contentions, he has relied upon the cases reported as Muhammad Panah V. The State (2019 P.Cr.L.J Note 143), Ghulam Akbar V. The State(2007 YLR 1182), Muhammad Akram V. The State (2009 P.Cr.L.J 1146), Shahzado and 2 others V. The State (2011 MLD 1917) and Haji Abid Hussain V. The State (2005 YLR 532). He has prayed for dismissal of the bail application.
5. Learned Deputy Prosecutor General while opposing the bail plea submits that this is a case of three murders and one injured and the same is a heinous offence; that statement of Imran can be treated as dying declaration as after recording the statement Imran was expired; that applicants while issuing threats and making conspiracy committed the offence. Lastly, he prayed that interim bail granted to the applicants may be recalled while dismissing their bail application.
6. I have considered the submissions made by learned counsel for the parties and have gone through the material available on record and the police file with their able assistance.
7. As per FIR both the applicants were not available at the time of incident. Complainant stated in the FIR that allegation of Karap was leveled 35/40 years prior to the incident but during such long period no harm was caused to the complainant party by the applicants. No date and time of the alleged threats is mentioned in the FIR and the same allegation of threats was disclosed by the complainant and his P.Ws, namely, Mazhar Bhayo and Karamullah in their further statements. On 10.03.2020, the investigation officer examined P.W Imran Bhayo before his death, who had improved the version of complainant by levelling allegations of threats, instigation and abetment against the present applicants though such statement was recorded with delay in spite of that, it is not mentioned in the said statement that the applicants were present at the time of incident.
8. After assessing the material available in the file tentatively, no material/evidence found as regards to the conspiracy made by the applicants with the main accused for committing the murders of the complainant party. When and where the applicants made conspiracy with the principal accused for committing murders of the complainant party is yet to be determined by the trail court after recording evidence of the parties.
9. As regards to the F.I.R No.105/2020, learned counsel for the applicants place on record the copy of certificate No: CMCHL/ 1932/37 Dated: 24-06-2020 issued by the special medical board which shows thatSpecial Medical Board opined that the injury declared by the doctor in the certificate as "incorrect".
10. I would like to point out that extra-ordinary relief of pre-arrest bail is meant for innocent persons to save them from humiliation and disgrace from the hands of police. The purpose of this remedy is to protect liberty and reputation of citizens, particularly in a case where the circumstances, in which the case seems to be a case of further inquiry on the basis of material placed before the Court. The power to grant bail under section 498, Cr.P.C. is not additional to or independent to section 497, Cr.P.C., and even while granting pre-arrest bail the provisions contained under section 497, Cr.P.C. are also to be kept in mind. However, the grant of bail or its refusal is essentially a matter of discretion to be exercised judiciously and not arbitrarily and the facts of each and every case is to be considered separately and independently. Reasonable and plausible ground must exist for grant of bail before arrest. The concept of pre-arrest bail was developed on three presumptions, (a) the accused is presumed to be innocent till he is found guilty, (b) the accused should have a right to prepare his defence and prove his innocence before the trial Court and (c) the accused should not be punished before the findings of his conviction rendered by the Court.
11. It is alleged against the applicants that on their instigation or abatement the attack was made by co-accused upon the complainant party. So I have no hesitation in my mind to hold that the charge against the present applicants have direct nexus and germane to the main offence and the result of the case and unless the matter is tried by the competent Court to ascertain the guilt of the main accused persons the charge of abatement cannot be proved.
12. It is settled principal of law that for making out a prima-facie case, for grant of pre-arrest bail, accused has to show some mala fide on the part of the complainant and the investigating agency, motivated by caprice and ulterior motive to humiliate and disgrace the accused person in case of arrest however, at bail stage, except in very rare cases, it is difficult for an accused person to furnish tangible proof about the element of mala fide or foul play on the part of the complainant or the arresting agencies therefore, the Court has to look at the materials available on record and to draw inferences therefrom about the mala fide or ulterior motive, on account of which the intended arrest of the accused is motivated.
13. It is also a settled principal of law that deeper appreciation of the evidence is not permissible while deciding the bail plea of the accused and the same is to be decided tentatively on the basis of material available on the record. From tentative assessment of the material as has been discussed above, I am of the opinion that the applicants have made out case for confirmation of bail. Accordingly, instant bail application is allowed and ad-interim pre-arrest bail earlier granted to the applicants vide order dated 29.04.2020 is hereby confirmed on the same terms and conditions.
14. The observations made hereinabove are tentative in nature only for the purpose of deciding the instant bail application, which shall not, in any manner, influence the learned Trial Court at the time of final decision of the subject case.
J U D G E