IN THE HIGH COURT OF SINDH, CIRCUIT COURT,LARKANA

Criminal Bail Application No.S-648 of 2020

Applicant:                                          Nehal Khan

Through Mr. Amanullah Luhur Baloch, Advocate.

The State/Complainant:                              Through Mr. Muhammad Noonari,

Deputy Prosecutor General.

Date of hearing:                                 07-05-2021

Date of Decision:                               07-05-2021

O R D E R

ZULFIQAR ALI SANGI, J.- Through this bail application, applicant Nehal Khan Chandio seeks pre-arrest bail in case, emanating from F.I.R. No.05/2020, registered at Police Station Shah Godrio, District Dadu, for offence under Sections 302,147,148,149,504 P.P.C. Earlier his bail plea was declined by the learned Sessions Judge, Dadu, vide order dated 20.11.2020.

2.       The  brief facts of this case are that  on 08-07-2020 at 1400 hours Complainant Waris Ali son of Hamid by caste Chandio got lodged FIR at P.S Shah Goderio, station therein that about 16/17 days prior to the incident, the harsh words had been exchanged between the parties due to matrimonial dispute. The complainant had made complaint against accused Ali Sher and other to his Sardar, hence the accused Ali Sher and other had annoyed. On 7-7-2020 the complainant along with his brother namely Huzoor Bux and uncles namely Ameer Ali and Ali Gul, went to village Shah Goderio by foot for some work. At about 0730 hours when they reached near the houses of accused Ali Sher Chandio and others where they saw accused namely  Ali Sher having Pistol in his hand, 2. Ali Raza having Danda in his hand both sons of Yar Mohammad, 3. Nehal Khan son of Halem Khan (Present applicant) having danda in his hand, 4. Ali son of Allah Dino and two unidentified persons having dandas were standing there. The accused raised voice to the complainant party and abused them. In the mean while accused Ali Sher made straight fire from his Pistol upon complainant’s brother Huzoor Bux with intention to commit his murder, which hit him on his abdomen who fell down on the ground while raising cries, blood started oozing. The complainant party raised cries which attracted the villagers. The accused to see the villagers ran away. After departure of accused the complainant party found that his brother had received fire shot injury on his navel which became through and through and he died instantaneously. The police came and complainant arranged the vehicle and shifted the dead body of his brother to Taluka Hospital Mehar for post mortem. After conducting post mortem, the complainant appeared at P.S and got registered the instant FIR.

3.     Learned counsel for the applicant submits that applicant is innocent and he has falsely been implicated by the complainant due to enmity as such false implication of applicant cannot be ruled out; that there is delay of one day in registration of FIR and same has not been explained by the complainant; that the allegation against the present applicant is that he duly armed with Danda was available at the place of incident however; no overt act has been assigned to the present applicant and the sharing of common object in commission of offence will be determined at the time of trial. He prayed that case of present applicant requires further inquiry, therefore, interim pre arrest granted to the applicant may be confirmed.

4.       The complainant present in person submitted that he has full confidence over learned DPG as such he will not engage his private advocate.  Learned Deputy Prosecutor General contended that applicant is nominated in the FIR; with specific role of having danda was present at the place of incident along with co accused as such the applicant is not entitled for the concession of pre arrest bail, the same may not be confirmed.

5.         I have considered the submissions of learned counsel for the parties and have gone through the material available on record and the police file with the assistance of learned Deputy Prosecutor General.

6.           Admittedly; the allegation against the present applicant is that he duly armed with Danda was available at the place of incident; however, no overt act has been assigned to him; delay of one day in registration of FIR has not been explained by the complainant which also favour’s applicant at this stage. As regards to the sharing of common intention in respect of the murder of deceased Huzoor Bux, the same will be decided after the recording evidence of prosecution witnesses by the trial court. It is settled law that bail application is to be decided on the material available on the record with tentative assessment and deeper appreciation of evidence is not permitted. From the tentative assessment of the material available on the record, the applicant has made out his case for confirmation of bail. Resultantly, this application is allowed and the ad-interim pre-arrest bail earlier granted to the applicant vide order dated 18.12.2020 is hereby confirmed on the same terms and conditions.

7.           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.

J U D G E

S.Ashfaq/