IN THE HIGH COURT OF SINDH, CIRCUIT COURT,
LARKANA
Crl. Bail Appln. No. S- 491 of 2020.
Applicant: Janib son of Attal Khan Jagirani, through Mr. Shahbaz Ali Brohi, Advocate.
Complainant: Agha Imran Khan, through Mr. Muhammad Ali Memon, Advocate.
Respondent: The State, through Mr. Muhammad Noonari, Deputy Prosecutor General.
Date of hearing: 08.02.2021.
Date of Order: 08.02.2021.
O R D E R
Zulfiqar Ali Sangi, J: Through this application, applicant Janib son of Attal Khan Jagirani has sought for his admission to post-arrest bail in Crime No.36/2020, registered at Police-Station Dakhan (District Shikarpur), for offences punishable under Sections 302, 109, 506 (2) and 34 P.P.C. His similar request was declined by learned Sessions Judge, Shikarpur vide Order dated 09.9.2020.
2. The facts of prosecution case in nutshell are that on 03.6.2020 complainant Agha Imran Khan lodged F.I.R with P.S Dakhan, alleging therein that on 02.6.2020 his brother Ishtiaque Ahmed Khan went to his land on his car bearing registration No. ATR- 540 and complainant was at Hyderabad, but he was in touch with his brohter. At 1320 hours his nephew Mukaram Khan and Muneeb Khan informed him that Ishtiaque Khan was coming towards DarriJakhri and at Ali Hassan Kakepoto forest he was intercepted by two unknown persons who took out pistols; fired at him and murdered him, hence this F.I.R.
3. Learned counsel for the applicant mainly contended that applicant is not nominated in the F.I.R; that no descriptions of the applicant have been mentioned in the F.I.R; that allegation against applicant is that he is abettor of the alleged offence and this fact has been disclosed by witnesses Abdul Haleem and Muhammad Nawaz in their 161 Cr.P.C statements which were recorded on 10.6.2020 with inordinate delay. Learned counsel further contended that further statement of complainant was recorded who has implicated applicant in this case with allegation of only conspiracy and abetment. Learned counsel in support of his contentions relied upon case of Syed Amanullah Shah v. The State and another (PLD 1996 Supreme Court 241), Sabir Hussain and 3 others v. The State (2005 P.Cr.L.J 744), and Khalid Ahmed Khan Lund v. The State (PLD 2015 Sindh 20).
4. On the other hand Mr. Muhammad Ali Memon learned Advocate for complainant opposed bail application by contending that after registration of the F.I.R a J.I.T was constituted and during investigation witnesses Muhammad Nawaz and Abdul Haleem were examined in terms of Section 164 Cr.P.C, who fully implicated the applicant-accused in the case; that no enmity is pointed out by the applicant-accused; that confessional statement of the applicant-accused was recorded by the police through video-recording, which is available with the prosecution. He further contended that CDR of the applicant-accused was collected which also support case of prosecution. However, learned Advocate for complainant conceded that the role against applicant-accused is that of only conspiracy. He relied upon the case of Wajid Ali v. Mumtaz Ali Khan and another (2000 MLD 1172).
5. Learned D.P.G. also opposed the grant of bail tothe applicant on the grounds that applicant-accused is facilitator of co-accused and he has hired the persons who committed the murder of deceased, so also he brought the accused at place of vardat, who murdered deceased. He further contended that there is strong motive for committing murder of deceased. He relied upon case of Toga alias Togi v. The State and another (2016 P.Cr.L.J Note-58), Ghulam Ahmed Chishti v. The State and another (2013 SCMR 385), Raja Muhammad Irshad v. Muhammad Bashir Goraya and others (2006 SCMR 1292) and Naseem Malik v. The State (2004 SCMR 283).
6. I have heard learned counsel for the parties and perused the material available on the record with their able assistance.
7. It is obvious from the record that, neither the applicant is nominated in the F.I.R, nor his presence is shown on spot at relevant time and only allegation against applicant is that he hatched conspiracy for the murder of deceased. To prove conspiracy and abetment against any person it is obligatory upon prosecution to collect strong and inspiring evidence. However, in this case fact of hatching conspiracy by applicant is not mentioned in the F.I.R, nor names of persons before whom alleged conspiracy was hatched were disclosed in the F.I.R. The name of applicant was disclosed later-on by witnesses Muhammad Nawaz and Abdul Haleem, who are not named in the F.I.R as witnesses. As per version of these witnesses they heard about conspiracy of murder of deceased on 26.5.2020 but they remained mum for many days, and even after registration of F.I.R they were silent. Another piece of evidence against applicant-accused is that he has also been implicated in this case by complainant through his further statement. It appears that further statement of the complainant was recorded after the statements of above witnesses were recorded and in his further statement the complainant has changed his own version and implicated the applicant in the case. It is settled law that the charge of conspiracy and abetment could not be proved unless case is tried by the trial Court to ascertain guilt of principal accused.
8. As regards to the confessional statement of the applicant- accused, the same was recorded after his arrest while he was in the custody of police, which as per Article 38 and 39 of the Qanun-e-Shahadat Order, 1984, cannot be used against him, as the same was not recorded in presence of the Magistrate.
9. The case has been challaned and custody of applicant is not required to police for the purpose of investigation. A tentative assessment of the material available on record, makes the case of applicant one of further enquiry in terms of subsection (2) of Section 497 Cr.P.C. Accordingly, the captioned bail application is allowed. Consequently, applicant Janib Jagirani is granted post-arrest bail upon his furnishing solvent surety in the sum of Rs.200,000/- (Two hundred thousand rupees) and P.R bond in the like amount to the satisfaction of learned trial Court.Needless, to mention that the observations made hereinabove are tentative in nature and would not prejudice case of either party at trial.
Judge
Ansari