IN THE HIGH COURT OF SINDH BENCH AT SUKKUR
Crl. Bail Application No.S-737 of 2019.
|
DATE OF HEARING |
ORDER WITH SIGNATURE OF JUDGE |
1. For orders on O/objection at flag-A.
2. For the hearing of bail application.
Date of hearing 31.01.2020.
Mr. Shamsuddin N. Kobhar Advocate for applicants.
Mr. Nawab Ali Pitafi Advocate for complainant.
Mr. Abdul Rehman Kolachi DPG for State.
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O R D E R
ZULFIQAR ALI SANGI, J; Through instant bail application, applicants Jatoi, Khan Mohammad, Ghulam Mustafa, Deen Mohammad, Khair Mohammad, Shoukat Ali and Rajib Ali seek Pre-arrest bail in Crime No.222/2019 registered at Police Station, Daharki for offence under Sections 302, 365-B, 337H(ii), 337A(i), 337F(i), 147, 148, 149 PPC. Earlier their bail application was declined by learned III-Additional Sessions Judge, Mirpur Mathelo vide order dated 07.12.2019.
2. The brief facts of the prosecution case are that on 06.10.2019 at 1500 hours, the complainant Muneer Dahar appeared at Police Station, Daharki where he got registered FIR of this case with the Police, stating therein that on 04.10.2019 his nephew Wajid Ali got free will marriage with one Mst. Asma daughter of Ali Nawaz to which her brothers Javed and Ghulam Murtaza antagonized and threatened that in revenge, they will abduct Mst. Gul Pari. On 05.10.2019, complainant and his sons namely Maqbool Ahmed and Sheeraz along with other family members were sleeping in their house, where at 0230 hours of night, they heard cries from the house of his nephew Wajid Ali, he along with his above-named sons rushed there, where they saw on the flash of glowing electric bulbs that his brother-in-law namely Waryam and his brother Abdul Qadeer, relative Ahsan, Nadeem, niece Mst. Gul Pari and their other family inmates were standing there. They also found that applicants/accused Javed, Ghulam Murtaza and Khalil all armed with hatchets, Sajad armed with K.Kov, Shah Ali, Jatoi and Khan Mohammad @ Aijaz, Deen Mohammad and Shoukat Ali armed with Pistols, Dadan, Mohsin, Majid armed with hatchets, Ghulam Mustafa and Ali Hassan, Khair Mohammad, and Rajib armed with cudgels were also standing there. They asked the complainant party not to come near to them. Thereafter accused Deen Mohammad, Shoukat, Jatoi and Shah Ali dragged Mst. Gul Pari from her arms and were abducting away her from her house. Meanwhile, Waryam brother-in-law of complainant restrained from the abduction of Mst. Gul Pari. It is alleged that accused Sajjad made straight fire from his K.Kov upon the Waryam on his head and he fell while crying and succumbed to the injuries on the spot. Thereafter the complainant party advanced to rescue Mst. Gul Pari from the accused, the accused Javed and Khalil caused hatchet blows to complainant Muneer Ahmed on his head while accused Rajib caused lathi blow on his buttock. The accused Ai Hassan caused lathi blow to PW Ahsan Ali whereas accused Khair Mohammad and Ghulam Mustafa caused lathi injuries to one Sheeraz (son of the complainant). The accused Majid caused hatchet blows to PW Nadeem on his head and accused Murtaza caused hatchet blow to Maqbool Ahmed on his head while accused Dadan also caused him hatchet blows to him which he received whereas the accused Rajib also caused him lathi blow on his shoulder. Complainant party raised cries thereafter accused who were armed with weapons made aerial firing to create harassment and have abducted away Mst. Gul Pari and went away.
3. Learned Counsel for applicant contends that the applicants have falsely been involved in this case by the complainant with ulterior motives. There is an unexplained delay of about 24 hours in the registration of FIR for which no plausible explanation has been furnished by the complainant; that incident was of night time and identification on electric light is the weakest type of evidence; that Mst. Gul Pari was not abducted by the applicants; that the main allegation of causing murder is not against the applicants; that injuries, as alleged against the present applicants, are punishable up to 05 years and the same does not fall within the prohibitory clause of Section 497 Cr.P.C. He further contended that applicants were involved by the complainant due to enmity as it is admitted in the FIR that the brother of Mst. Gul Pari namely, Wajid Ali abducted Mst. Asma on 04.10.2019 and applicants want to register said FIR but complainant party registered a present FIR against the applicant's party hence they did not appear at Police Station. He relied upon the case of Mohammad Boota V. The State and others (2014 SCMR 1355), Sardar Mohammad Ameen Khan and another V. The State and others (2014 P.Cr.LJ 940), Sher Alam Khan alias Vakil Khan V. The State and another (2011 MLD 349), Naveed Ghanghro and 3 others V. The State (2010 MLD 699), Pur Bux V. The State (2012 SCMR 1955), Abdullah and 3 others V. The State and another (2018 P.Crl.J 763) and Muhammad Afzal V. The State and another 2011 P.Cr.LJ 1754) By stating so, he prayed for confirmation of bail.
4. Conversely, Mr. Nawab Ali Pitafi, counsel for complainant assisted by learned Deputy Prosecutor General appearing for the State vehemently opposed the bail on the ground that the delay in the FIR is very much explained by the complainant at the first instance he along with other injured went to the hospital for their treatment and later on FIR was registered and same is prompt; that no previous enmity existed between the parties but on 04.10.2019 when the brother of abductee Gul Pari namely, Wajid Ali has contracted free-will marriage with Mst. Asma daughter of Riaz Ahmed on which applicants party annoyed and to take revenge they attacked upon the complainant party, abducted Mst. Gul Pari committed murder of Waryam and caused serious injuries to 05 other PWs; that it was pre-planned murder and all the accused shared their common intention which is clear from the role of all the applicants; that all the applicants and complainant party are resident of the same village, therefore, their identity at the time of offence creates no doubt; that all the PWs have supported the version of complainant and their version also supports the medical evidence; that abductee Mst. Gul Pari in her statement recorded u/s 161 Cr.P.C has fully supported the case of the prosecution. He further contended that for the pre-arrest bail applicants are require to shows malafide on the part of complainant or investigating agency for implicating them falsely but they have not pointed out any malafide on the part of the complainant. He relied upon the case of Riaz Ahmed v. The State (2009 SCMR 725), Manzoor Hussain v. The State (PLD 2008 Karachi 157), Allah Bachayo and others v. The State (2009 SCMR 1352), Mohammad Nawaz and others v. The State (2005 YLR 2512), Mukhtiar Ahmed v. The State and others (2016 SCMR 2064) and Mohammad Sadique and others v. The State and another (2015 SCMR 1394).
5. I have heard arguments of learned Counsel for the parties and perused the material available on record with their able assistance.
6. The motive as stated by the complainant is that the applicant party attacked upon the house of the complainant to take revenge from them as a brother of abductee Mst. Gul Pari has contracted free-will marriage with Mst. Asma. The motive has been admitted by the applicant party in paragraph No.10 of the application which is also against the applicants as they have a motive for committing the offence for taking revenge and applicants not been able to place on record any material which may suggest that they were implicated falsely in the present case.
7. This is not a simple case of injuries to the injured persons as has been argued by the counsel for the applicants but during an attack by the applicants one innocent person namely Waryam Dahar has lost his life and the present applicants also abducted Mst. Gul Pari and she remained in their captivity for about four days and when she escaped from captivity of the applicant she came at Police Station on 09.10.2019 where her statement u/s 161 Cr.P.C was recorded in which she fully supported the case of prosecution along with specific role of applicants which they played at the time of incident.
8. The record reflects that five persons besides the deceased received injuries from the hands of applicants. The details are as under:-
|
Sr.No. |
Name of injured. |
Nature of injuries. |
|
01. |
Ihsan. |
1. Shujjah-i-Hashima 2. Ghyr Jaifa Hashima. 3. Ghyr Jaifa Hashima. |
|
02. |
Sheeraz Dahar. |
1. Ghyr Jaifah Damihah 2. Ghyr Jaifah Damihah 3. Ghyr Jaifah Damihah. |
|
03. |
Nadeem. |
1. Shujjah-i-Hashima. |
|
04. |
Muneer Ahmed. |
1. Shujjah-i-madihah. 2. Shujjah-i-madihah. 3. Shujjah-i-madihah. |
|
05. |
Maqbol Ahmed. |
1. Shujjah-i-Khafifah 2. Ghyr Jaifah Damihah 3. Ghyr Jaifah Damihah. 4. Other hurts. |
9. The aforesaid injuries have supported by the Medico-legal certificate issued by Medical Officer which reflects that the injured were beaten by the applicants mercilessly and one innocent person lost his life.
9. It is a well-settled principle of law that in case of abduction the accused persons are playing different roles i.e. some are collection information, some are abducting, some are guarding upon abductee and some are facilitating them, in the instant case all the applicants shared their common intention to abduct Mst. Gul Pari in lieu/revenge of Mst. Asma and during such abduction one person died and five persons received injuries, therefore, in the circumstances of the present case, less role on any of the applicants is not considered as a ground of bail, wherein according to the facts and circumstance section 34, PPC is fully attracted. In this regard, the reliance is placed upon the case of Manzoor Hussain v. The State (PLD 2008 Karachi 157), wherein it has been held that;
“In my humble view, the facts and circumstances mentioned in the above case law are distinguishable from the facts of the present case. Names of both the applicants/accused appear in FIR. They were armed with pistol along with main accused namely Adnan who is said to have committed the murder of his wife Mst. Sajida, statements of two eye witnesses namely, Shabir Ahmed and Waqar Ahmed have been recorded under Section 164 Cr.P.C in presence of co-accused Adnan. They have given full account of the incident in their statements. Accordingly to them both the present applicants/ accused were armed with pistols and were accompanying main accused Adnan is committing this heinous crime. PW Waqar has stated that the present applicants who were armed with pistols threatened the witnesses and thereafter left the wardat.
Section 34 PPC is very much attracted in the facts of this case. The present applicants as per evidence had facilitated the main accused in committing the above crime therefore, bail before arrest should not be granted to them in ordinary circumstances. The applicants have failed to establish the main ingredients of grant of bail before arrest at this stage as it cannot be said that they have been falsely involved with malafide intention in this case.
For these reasons, I am of the considered opinion that the applicants/accused are not entitled for bail before arrest therefore, both the applicants for bail before arrest are dismissed. Interim pre-arrest bail already granted to the applicants are recalled”.
10. It is also a well-settled principle of law that pre-arrest bail is an extraordinary relief which cannot be granted in every case as each case has its facts and circumstances. The consideration of pre-arrest bail is altogether different that of post-arrest bail. The persons seeking bail are duty-bound to establish and prove malafide on the part of the investigating agency or by the complainant. The bail before arrest is meant to protect innocent citizens who have been involved in the heinous offence with malafide and ulterior motives the same are lacking in the instant case. The offence with which the applicants are charged is punishable up to death and imprisonment for life which falls under the prohibitory clause of Section 497 Cr.P.C. In the case of Allah Bachayo and others v. The State reported in (2009 SCMR1352), the Honourable Supreme Court has observed that:-
"We have heard the learned Counsel for the parties as well as the learned Prosecutor General Sindh and have also gone through the available record with their able assistance. Prima facie, there is material to indicate that the petitioners and other had gone to the house of complainant party. As a result of the assault of the accused by use of fire-arms, one Mst. Basra lost her life whereas PW Mst. Asma also received fire-arm injuries on vital parts of her body and she luckily survived. The injured PW Asma supported the prosecution case thereby involving the petitioners with the commission of offence. The principles governing the concession of anticipatory bail are quite different from those which are attracted to a case of post-arrest bail. Ordinarily, this Court being constitutional Court is not expected to interfere with the bail matters, if properly dealt with by the High Court. Reference may usefully be made to the case of Sultan Khan v. Amir Khan PLD 1977 SC 642. The petitioners have not been able to make out a case for grant of pre-arrest bail. The discretion exercised by the High Court does not suffer from any legal infirmity so as to warrant interference by this Court.
For the foregoing reasons, we do not find any merit in this petition which is dismissed and leave to appeal is refused accordingly.”
11. The applicants were specifically nominated in the FIR with their specific roles and participation; motive has been admitted by the applicant's party. It is also a well-settled principle of law that deeper appreciation of evidence is not permissible at the bail stage and material is to be assessed tentatively. No doubt in the cases cited by the learned Advocate for applicants, bail was granted but in each one of them, the facts and circumstances were quite different and thus they were distinguishable from the facts of this case.
12. From the tentative assessment of the material available on record, the applicants have failed to make out their case for a grant of pre-arrest bail. Accordingly, the instant bail application is dismissed and interim pre-arrest already granted to the applicants vide order dated 26-12-2019 is hereby recalled.
13. Needless to mention here that observations made hereinabove are tentative and the trial Court may not be influenced by the same and decide the case on its own merits as per evidence and the material made available before it.
14. The above are the detailed reasons for my short order dated 31.01.2020.
Bail application stands disposed of.
J U D G E