IN THE HIGH COURT OF SINDH BENCH AT SUKKUR

 

Cr. Bail Application No.S-364 of 2021

 

 

 

Applicants:                               Syed Ameer Ali Shah, through

Mr. Sundar Khan Chachar, Advocate

 

 

Complainant:                           Madad Ali Shaikh, through

Mr. Ali Ahmed Khan, Advocate

 

State:                                       Through Shafi Muhammad Mahar

Deputy Prosecutor General.

 

Date of hearing:                       01.11-2021

Date of Decision:                      01.11-2021

 

 

O R D E R

 

ZULFIQAR ALI SANGI, J.- Through captioned bail application, applicant Syed Ameer Ali Shah son of Syed Dildar Hussain Shah, seeks pre-arrest bail in Crime No.108/2020, registered at Police Station Baberloi, for the offences u/s  302, 114, 147, 148, 149, 120-B and  337-H(2) PPC. His earlier pre-arrest plea was declined by learned 1st Additional Sessions Judge (MCTC) Khairpur vide order dated 26.04.2021.

2.                Briefly the facts of the prosecution case are that on 27.11.2020 complainant Madad Ali along with his maternal nephew  Zeeshan Hyder and cousins Nadeem Abbas and Ali Abbas  left for Baberloi Town for purchasing household articles on two motorcycles, when they reached at old National Highway near the otaq of Sikander Shah where emerged accused persons  namely Ameer Ali Shah, Ali Mehdi Shah both armed with pistols, Jarnail Shah, Alamdar alias Turab Ali both armed with TT pistols and Sikander Ali Shah. They   halted them on the pointed weapons and on the instigation of accused Sikander, accused Ameer Ali Shah made straight shot with TT pistol upon Zeeshan Hyder which hit him on his temporal region and he raising cries fell down on the ground. They raised cries on which all the accused making aerial firing and raising slogans went away towards their houses. Thereafter they found that Zeeshan Hyder has died. They informed the police.  Police came at the spot, shifted the dead body to RHC Garhi Mori and after got conducted postmortem handed over the dead body to complainant party who brought it to their village and then complainant lodged such FIR.

3.                Learned counsel for the applicant has contended that there is delay of one day  in registration of F.I.R and the same has not been explained by the complainant; that the applicant has falsely been implicated due to enmity which is admitted in the F.I.R; that during investigation applicant along with two  co-accused were found innocent and their names were kept in column-II of the challan but learned Magistrate did not agree with the opinion I.O and joined the applicant; that during investigation it came on record that another person namely Ali Hassan Bhangar  has committed the murder of deceased Zeeshan Hyder; that all the PWs are closed relative of the complainant and they are highly interested; that all other co-accused are on bail. Lastly he prayed for confirmation of bail. In support of his contention learned counsel placed his reliance on bail order passed by this court in Cr.B.A.No.S-442/2019, 2012 SCMR 1137,  2020 SCMR 417, 2020 P.Cr.L.J Note 89, 2021 SCMR 87, 2021 SCMR 130, 214 P.Cr.L.J396, 2014 YLR 816 and 2017 P.Cr.L.J 631.   

4.                Learned counsel for the complainant has opposed the confirmation of bail and has contended that applicant is nominated in the FIR with specific role of firing upon the deceased; that complainant and PWs have fully supported  the prosecution case: that complainant has fully explained the delay in FIR; that the medical evidence is in corroboration with the ocular version; that no malafide has been pointed out by the applicant on the part of complainant. Lastly he submitted that the applicant is not entitled for confirmation of interim pre-arrest bail.   

5.                Learned D.P.G. adopted the arguments advanced by the learned counsel for the complainant and has further contended that the case of co-accused who have been granted  bail, is different from the case of present applicant. He has placed his reliance on 2012 SCMR 707 and 1998 SCMR 01 and requests for rejection of bail.

6.                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.

7.                Admittedly the name of the applicant/accused is mentioned in the F.I.R with specific role of making straight shot upon the deceased with the result he died at the spot; the version of the complainant has been fully supported by the PWs in their 161 Cr.P.C statements; the ocular evidence is supported by the medical evidence; the delay in registration of F.I.R has been properly explained by the complainant in the F.I.R;  no malafide has been pointed out by the applicant on the part of complainant for false implication; the case law cited by learned counsel is distinguishable to the case of present accused and is not applicable in this case; 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 at bail stage.  

8.                In these circumstances; I am of the considered view that the applicant has failed to make out his case for grant of pre-arrest bail. Accordingly, instant criminal bail application stands dismissed and the order dated 14.06.2021 whereby the applicant was granted interim pre-arrest bail, is hereby recalled.

9.                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.

 

JUDGE

 

Suleman Khan/PA