IN THE HIGH COURT OF SINDH BENCH AT SUKKUR
Cr. Bail
Application No.S-456 of 2021
Cr. Bail
Application No.S-467 of 2021
Applicants: Mouj Ali Rid, through
through Mr. Saeed Ahmed Bhatt, Advocate
Niaz Hussain Rid,
through
Mr. Ghulam Shabbir Bhutto, Advocate
Complainant: Gul Bahar Rid, through
Mr. Ghulam Rasool Narejo, Advocate
State: Through Syed Sardar
Ali Shah Rizvi
Deputy Prosecutor
General.
Date
of hearing: 04-10-2021
Date
of Decision: 04-10-2021
O R D E R
ZULFIQAR
ALI SANGI, J.-
By this common order I intend to dispose of captioned two bail applications arising
out of same crime, filed by applicant Mouj Ali s/o Pahelwan by caste Rid (Cr.B.A.No.S-456/2021) and applicant Niaz Hussain s/o Muhammad Sachal
by caste Rid (Cr.B.A.No.S-467/2021), who are seeking their post-arrest bail in
Crime No.56/2021, registered at Police Station Kotdiji,
for the offences u/s 302, 506/2, 148 and
149 PPC. Their earlier bail plea was declined by the learned Additional
Sessions Judge-I/ (MCTC) Khairpur, vide order dated 17.07.2021.
2.
Briefly the facts of the prosecution case as
narrated by complainant Gul Bahar in the FIR, are that for last six months accused Mahboob Rid party was issuing them threats for leaving the harap of land of Sirai Aijaz Hussain otherwise they would be murdered as they have
dispute with him on the said land. On the night of incident dated 20.05.2011, complainant
along with his brother Taqi were irrigating the said
land where his brother Ghulam Raza
and cousin (Phuphat) Samano
Khan brought tea for complainant and it was about 0230 hours, when they saw and identified on
the torch light as Mehboob Ali armed with KK, Rahib armed with pistol, Niaz
alias Nazo armed with KK, Mureed
Hussain armed with rifle, Mouj Ali armed with pistol
and three unknown persons armed with repeaters, they all pointed their weapons
upon the complainant party and controlled over them. Accused Mehboob Ali, Niaz Ali alias Niazo, Rahib and Mureed Hussain made direct fires upon his brother Ghulam Taqi which hit him who
while raising cries fell down on the ground, then all
the accused persons making aerial firing ran away. Thereafter complainant party
saw that Ghulam Taqi has
sustained firearm injuries and blood was oozing and in the way to hospital he
succumbed to injuries and died. Then complainant appeared at Police Station and
lodged such FIR.
3. Learned counsel for the applicant Mouj
Ali has contended that there is delay of about 12 hours in lodging of FIR; that
no active role has been assigned to the applicant Mouj
Ali and mere his presence is shown at the place of incident; that this is night
time incident and identification of accused on torch light is a weakest type of
evidence; that all the witnesses are close relatives of the complainant and no
independent witness from the locality has been shown. He in support of his contention
placed his reliance on Mukaram v. The
State (2020 SCMR 956). Lastly he prayed for grant of post arrest bail to
applicant Mouj Alli.
4. Learned counsel for the applicant Niaz
Hussain adopted the arguments advanced by learned counsel for applicant Mouj Ali and further contended that enmity is admitted in
the FIR and several litigations between applicant and complainant parties are
pending, as such false implication of applicant cannot be ruled out and the
case against applicant Niaz Hussain requires further
enquiry.
5. Learned counsel for the complainant has contended
that the applicants are nominated in the FIR with specific role that accused Niaz Hussain fired at deceased while accused Mouj Ali
facilitated co-accused and shared common intention in the commission
of offence which carries capital punishment and falls within prohibitory clause;
that all the witnesses have supported the version of the complainant in their
161 C.P.C statements and the medical evidence is in line with ocular evidence. He
prayed that bail application of the applicants may be dismissed. In support of
his contention learned counsel for the complainant has placed his reliance on
the cases of Soukat v. The State
(2010 MLD 1137), Hukamzad Khan v. The State and another (2011 YLR 779), Umar Hayat and another v.
The State (2009 P.Cr.L.J 1058), Zahid
Shah v. The State (2001 P.Cr.L.J 134), Ashique v. The State (2010 MLD 1699), Ehtasham-ul-Haq
v. The State (2009 P.Cr.L.J 1388), Moula Bux v. The State
(2009 P.Cr.L.J 472), Rab
Nawaz v. The State (2005 YLR 1858) and Muhammad Aslam v. The State (2010 P.Cr.L.J.914)
6. Learned
D.P.G. conceded for grant of bail to applicant Mouj
Ali on the ground that he has not
participated in the offence actively, while opposed the bail plea of applicant Niaz Hussain and has contended that applicant Niaz Hussain has been assigned active role of firing upon
deceased and there is no contradiction in ocular version and medical evidence
and the medical evidence corroborates the ocular account, therefore, he prayed
for rejection of the bail plea of the applicant Niaz
Hussain.
7. 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.
8. Admittedly, as per FIR no active role has been
assigned to applicant Mouj Ali and mere his presence
having pistol has been shown at the scene offence, however sharing of common
intention by him with co-accused shall be determined at trial after recording
evidence. In view of these facts and circumstances of the case, the case
against applicant Mouj Ali requires further enquiry. Resultantly,
applicant Mouj Ali is admitted to post-arrest bail
subject to furnishing his solvent surety in the sum of Rs.200,000/- (rupees two
lacs) and PR bond in the like amount to the
satisfaction of the trial court.
9. However, the case of applicant Niaz
Hussain is distinguishable from the case of applicant Mouj
Ali. Applicant Niaz Hussain is assigned specific role
of straight firing upon deceased Ghulam Taqi which hit him and he succumbed to the injuries and
died. The medical evidence is fully corroborated with ocular evidence. All the
prosecution witnesses have fully supported the version of complainant in their
161 Cr.P.C statements. There is sufficient iota of evidence to connect the
applicant Niaz Hussain with the offence which carries
capital punishment and falls within the prohibitory clause of section 497
Cr.P.C. It is well settled principal of law that the court has to make
tentative assessment while deciding the bail application and deeper
appreciation of evidence is not permissible. The case law referred by learned counsel
for the complainant supports the case of complainant.
10. In these circumstances; I am of the considered view
that the applicant Niaz Hussain
has failed to make out his case for grant of post-arrest bail. Accordingly, his
bail application (Cr.B.A.No.S-467/2021) is dismissed.
11. The observations made hereinabove are tentative in
nature only for the purpose of deciding the instant bail applications, which
shall not, in any manner, influence the learned Trial Court at the time of
final decision of the subject case.
JUDGE
Suleman
Khan/PA