IN THE HIGH COURT OF SINDH, CIRCUIT COURT,

LARKANA

Crl. Bail Appln. No.  S- 165 of 2021.

Applicant:                Azhar Ali, through Mr. Rafique Ahmed Abro, Advocate.

Complainant:          Ghulam Hussain Soomro, (present in person)

Respondent:             The State, through Mr. Muhammad Noonari, Deputy Prosecutor General.

Date of Hearing:                 12.07.2021.

Date of Order:                     12.07.2021.

O R D E R

Adnan-ul-KarimMemon J:         Through the captioned bail application under Section 497 Cr. P.C, the applicant Azhar Ali son of Ahmed Khan Buledi is seeking post-arrest bail in respect of cognizable offense registered on 18.06.2020 on behalf of complainant Ghulam Hussain Soomro at Police Station Badeh, being FIR No. 36/2020, under Sections 364-A, 34 PPC, with an unsuccessful attempt to secure bail in that regard having earlier been made vide like application preferred before the learned Additional Sessions Judge-II, Larkana, where the case is stated to be pending.

Concisely the version of the events depicted in the aforesaid crime and the accusation made against the applicant is that ofabducting Musnain aged about 9/10 years, the son of the complainant. Such report of the abduction of his son/incident wasmade before the concerned Police station on 18.06.2020. During the investigation, the dead body of Musnain was found; and, subsequently, his  DNA test was conducted, which matched with his parents.Final report under section 173 Cr. P.C in this regard was approved by the learned Magistrate concerned vide order dated 16.1.2021; and, the case was sent up to the learned Sessions Judge for trial.Finally, the applicant was arrested and booked in the aforesaid crime. He being aggrieved by and dissatisfied with his arrest in the aforesaid crime, preferred bail application No.01 of 2021 before the learned Additional Sessions Judge-II, Larkana, however, his plea was rejected vide order dated 05.04.2021 on the ground that he is connected with the offense charged with,the specific role of abduction/kidnapping the son of the complainant; and, subsequently, his son was allegedly done to death by throwing him in the canal by the main accused.

Learned counsel for the applicant has argued that the applicant/accused is innocent and has falsely been implicated by the complainant party. He further argued that there is a delay of about 04 days in lodging the FIR for which no plausible explanation has been furnished by the complainant, hence, deliberation, consultation, and false implication cannot be ruled out. He further contended that the applicant/accused is an old aged about 70 years so also he is suffering from varous ailments and he has no nexus with the alleged offense so also with co-accused and he has falsely been implicated in this case, therefore applicant/accused is entitled to concession of post arrest bail in the aforesaid crime.  

Learned DPG for the state, assisted by the complainant who is present in person opposed for grant of bail to the applicant/accused and argued that on the day of incident accused Azhar Ali along with co-accused kidnapped the son of complainant aged about 09/10 years to commit his murder.  The accused is nominated in the FIR with a specific role. The accusation against him is well-founded. Complainant and eyewitnesses in their statements under Section 161 Cr.P.C has also fully supported the version of FIR. The dead body of the deceased found, thereafter DNA test has become positive with the complainant and his wife.   The medical evidence is supported by ocular account. This is a heinous offense that entails capital punishment of death or imprisonment for life.

I have heard the learned counsel for the parties and perused the material available on record.

From the tentative assessment of the material available on record, prima facie it seems that the applicant is not connected with the sole commission of the offense of abduction and subsequent death of the son of the complainant; besides above the applicant was nominated in the  FIR after four days of the alleged incident with the role that he along with main accused abducted his son,  which factum needs to be seen by the learned trial court after the recording of evidence. The applicant was arrested on 21.6.2020 but no recovery of the alleged motorcycle was made from him. Statement of witnesses recorded by police under section 161 Cr.PC narrates a different story. The complainant filed an affidavit before this Court to the effect that the applicant is not his actual accused such factum has been recorded by this court vide order dated 25.6.2021. The aforesaid narration of the facts require further enquiry as contemplated under Section 497 (2) Cr. P.C. During arguments, I, asked the complainant, as to why he filed such affidavit with his statement before this Court narrating the factual position of the case, so far as role of applicant in the aforesaid crime is concerned, he, however, has no plausible answer to that effect. Be that as it may, I am only concerned with the tentative assessment of the record, which prima facie show that son of the complainant was taken away on 14.06.2020, whereas the report of his missing was lodged on 18.6.2020 without any reasonable justification. The record further reflects that the body of deceased was earlier buried and thereafter exhumation of grave of deceased was ordered by the concerned Magistrate and thereafter certain formalities were fulfilled. The aforesaid narration of facts require deeper appreciation of the matter to see the culpability of the applicant in the alleged crime, which could only be possible, if, evidence of complainant is recorded.So far as the grounds agitated by the learned DPG  and the Complainant which could not be assessed at the bail stage without recording the evidence in the matter.

For the aforesaid reasons and from the tentative assessment of the record, the applicant Azhar Ali has made out a case for post-arrest bail in FIR No. 36/2020 of Police station Badeh for offenses under Section 364-A,34PPC. The applicant shall be released on post-arrest bail in the aforesaid crime subject to furnishing his bail bond in the sum of Rs.100,000/- (One hundred thousand rupees) with one surety and P.R bond in the like amount to the satisfaction of the learned trial Court.

The observations made hereinabove are tentative in nature and would not prejudice case of either party at trial.

These are the reasons for my short order dated 12.7.2021, whereby the applicant was enlarged on post-arrest bail in the aforesaid crime.

JUDGE