IN THE HIGH COURT OF SINDH BENCH
AT SUKKUR
Cr. Bail
Application No.S-449 of 2021
Applicants: Javed Dahar and
others, through
Mr.
Ubedullah Ghoto, Advocate
Complainant: Muneer Ahmed,
through
Mr.
Nawab Ali Pitafi, Advocate
The State: Through Mr.Shafi
Muhammad Mahar,
Deputy
Prosecutor General
Date
of hearing: 20.09.2021
Dated
of order: 04.10.2021
O R D E R
Zulfiqar
Ali Sangi, J: Through
captioned bail application, applicants/accused Javed son of Ali Nawaz, Ghulam
Murtaza son of Ali Nawaz and Ali Hassan son of Muhammad Mithal Dahar, are
seeking their post-arrest bail in FIR No.222/2019, registered at Police Station
Daharki, District Ghotki, under sections 302, 365-B, 337-H(ii),
337-A(ii), 337-F(i), 337-F(v), 147, 148 and 149 PPC. Their earlier post-arrest bail plea was declined by the
learned Additional Sessions Judge/MCTC, Ubauro, vide order dated 12.06.2021.
After rejection of their bail application, they approached this court for the
same relief.
2. The
brief facts of the prosecution case as per FIR registered on 06.10.2019 at 1500
hours, are that on 04.10.2019 nephew of the
complainant 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 the applicants has submitted that the applicants have falsely been
implicated in this case; that there is delay of about 12 hours in registration
of FIR which has not been explained by the complainant; that the injuries
attributed to the present applicants as per medical certificates of the injured
are punishable up to five years and do not fall within the ambit of prohibitory
clause of section 497 Cr.P.C; that the present applicants have not caused any
injury to deceased Waryam, therefore vicarious liability is to be determined at
the trial; that there are contradictions in between medical and ocular
evidence; that the matrimonial dispute between the parties is admitted as such
false involvement of applicants cannot be ruled out; that the hatchets
allegedly recovered on the pointation of applicants Javed and Ghulam Murtaza have
been foisted upon them and the same were not found stained with human blood;
that in the above circumstances the matter requires further enquiry and
applicants are entitled for grant of post-arrest bail. Learned counsel for the applicants in support of his contentions placed
his reliance on the cases of
Abu Bakar Siddique alias Muhammad Abu Bakar v. The
State and others (2021 SCMR 540), Khiyal Saba and another v. the State and
others (2020 SCMR 340), Wajid Ali v. The State and
another (2017 SCMR 116), Kouro and another v. The
State (2004 YLR 2434), Allah Ditto and another v. The State (2011 P. Cr.
L.J 485), Nooruddin and another v. the State (2005 MLD 1267), Order dated
04.07.2019 passed by Honble Supreme Court in the case of Makhan v. Haji Mula Bux
and another (in Criminal Petition No.607 of 2019), order of this court dated
03.10.2019 passed in Cr.B.A.No.448 of 2019 and order dated 10.02.2020 passed in
Cr.B.A.No.S-708 of 2019 Shahnawaz v. The State.
4.
On the other hand, learned counsel for
the complainant has vehemently opposed the grant of bail and contended that the
applicants are nominated in the FIR with specific
role and that they were not only present at the place of occurrence duly armed with
hatchets and lathis but also facilitated the co-accused in offence of abduction
and murder; that the medical evidence is in support of ocular evidence; in
support of his contention learned counsel for the complainant has placed his
reliance on the cases of Muhammad Ali v.
The State (PLD 2012 Sindh 772), Ehsan Akbar v. The State and 2 others (2007 SCMR 482) and Muhammad Abbasi v.
The Sate and another (2011 SCMR 1606).
5. Learned
DPG supported the arguments advanced by the learned counsel for the complainant
and has contended that the applicants are nominated in the FIR with specific
role and also are vicariously liable
for the offence as they have shared common intention in the commission of
offence of abduction of Mst. Gul Pari and murder of deceased Wariyam, as such
they are not entitled for concession of bail.
6. I
have heard the learned counsel for the applicant, learned
counsel for the complainant and DPG and perused the material available on
record with their able assistance.
7. The
record reflects that co-accused (at present not before this court) in the present
case have applied for their pre-arrest bail which was declined up to the Honourable Supreme court of Pakistan. However,
these applicants have filed their post-arrest bail. It is fact that pre-arrest bail and bail after
arrest are based on entirely different principles and the rejection of an
application for the former does not have any bearing on the latter. Observation made in an order dealing with a matter of bail before
arrest do not ordinarily and should not generally affect the exercise and undertaken
or to be undertaken after arrest, for grant or refusal of bail.
8. As per the prosecution case the
applicants were specifically nominated in the FIR with their specific roles and
participation; motive has been admitted by the applicant's party. Although the
role against the present applicants is of causing injuries to the PWs and not
to the deceased, however, in the present case five persons besides the deceased received injuries from the hands
of accused persons. The recovery of
the crime weapons used in the commission of offence was effected
from the applicants Javed and Ghulam Murtaza. The injuries sustained by the PWs
are 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 Waryam
succumbed to the injuries, such merciless act of the applicants reflects that
the applicants shared their common intention with each other for commiting the ofenec
of murder of deceased Waryam, abduction of Mst Gul Pari and for causing
injuries to the witnesses in lieu of the revenge as stated in the FIR. Honourable Supreme Court in case of Ghani Khan V. The
State and another (2020 S C M R 594) has held as under:-
2. After hearing the learned counsel for
the petitioner, learned counsel appearing on behalf of the State and perusal of
available record, it has been observed by us that the petitioner is named in
the FIR with specific role of firing at the complainant Hazrat Ullah, which as
per the statement of the complainant, hit him on his right thigh and right side
of his chest. The said allegation is prima facie supported by the medical
evidence. The offence alleged against him falls within the prohibitory clause
of section 497(2) Code of Criminal Procedure. In these circumstances he is not
entitled to the concession of bail.
9. 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. It is observed that in the cases of
abduction the accused persons are playing different roles i.e. some are
collecting information, some are abducting, some are guarding upon abductee and
some are facilitating them, in the instant case all the applicants have a
motive to abduct Mst. Gul Pari in lieu of revenge of Mst. Asma and during such
abduction one person died and five persons received injuries as stated above,
therefore, in the circumstances of the present case, less role on any of the
applicants is not considered as a ground for grant of bail.
10. Prima facie, after meticulous assessment of the available record, there
appears reasonable grounds to believe that applicants/accused are involved in
the commission of alleged offence, which is punishable for death or
imprisonment for life. The citations referred to by learned counsel for the
applicants/accused are on different footings, even otherwise, the precedents in
bail matters are of no help to a party, as it varies from case to case
depending upon the facts of the each case. The deeper appreciation of evidence is not permissible at
the bail stage and material is to be assessed tentatively. From the tentative assessment of the material available on
record, the applicants have failed to make out their case for a grant of post-arrest
bail. Accordingly, the instant bail application is dismissed.
11. The present case was registered on
06-10-2019 and yet trial has not
been concluded, in these circumstances the trial court is directed to conclude the trial within three month from the date of this order under intimation to
this court through Additional Registrar. In case the applicants or their
counsel are found reluctant to proceed with the case, the trial court may appoint advocate for them on state expenses
and do not grant unnecessary adjournments.
12. Needless to mention here that
observations made hereinabove are tentative in nature and the trial Court may
not be influenced by the same and decide the case on its own merits.
13. Bail application stands disposed
of.
J U D G E