IN THE HIGH COURT OF SINDH BENCH AT SUKKUR

Criminal Bail Application No. S-284 of 2021

                                   

 

            Applicant                  :           Wazir Ali s/o Gul Jatoi, through

                                                            Mr. Qurban Ali Malano, advocate

           

            Complainant            :           Imamuddin s/o Samand Khan Jatoi, through Mr. Asif Ali Jatoi, advocate

                                                                           

            Respondent              :           The State, through Mr. Shafi Muhammad Mahar, Deputy Prosecutor General, Sindh

                                                               

            Date of hearing        :           13.09.2021 

            Date of order            :           13.09.2021

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                                                          ORDER

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ZAFAR AHMED RAJPUT, J.-       Applicant/accused Wazir Ali being failed to get the concession of post-arrest bail from the Court of Additional Sessions Judge-1, (MCTC), Khairpur in Cr. Bail Application No. 2833 of 2020, vide order dated 13.01.2021, through the instant application seeks the same concession from this Court in Crime/FIR No. 84 of 2020, registered under sections 302, 147, 148, 149 and 337-H (2), P.P.C. at Police Station Sorah, District Khairpur.

 

2.         It is alleged that on 07.09.2020, at about 06:30 p.m., present applicant, along with co-accused Mujahid alias Alam, Amanullah, Abdul Hakeem, Mehboob, all by caste Jatoi, and one unidentified accused, all duly armed with pistols, having formed an unlawful assembly and in prosecution of common object of such assembly, reached the agricultural land of Sobedar Khan Jatoi, the maternal uncle of the complainant, where  the applicant, co-accused Mujahid alias Alam and Amanullah committed qatl-i-amd of Khair Muhammad, 33/34, the cousin of the complainant Imamuddin, by causing firearm shots/injury to him, for which, the accused were booked in the instant case. As per F.I.R., motive behind the alleged murder was involvement of the deceased in the murder of one Ali Gul Jatoi, on that co-accused Amanullah was annoyed.   

 

3.         Learned counsel for the applicant has mainly contended that the applicant is innocent and has falsely and mala fidely been implicated in this case by the complainant due to tribal enmity over land property; that there is delay of 22 hours in lodging of FIR, for that no plausible explanation has been furnished by the complainant, hence deliberation and consultation for false implication of the applicant cannot be ruled out; that as per enquiry conducted on the application of accused party by the DSP, Complaint Cell, Khairpur, the applicant was not present at the place of occurrence on the relevant day and time; that no reasonable grounds exists to believe that the applicant has committed the alleged offence; that co-accused Mehboob has been granted bail by the trial Court vide order dated 25.11.2020, therefore, the applicant is also entitled for the concession of bail on rule of consistency; that co-accused Ali Gul Jatoi has been released by the police under section 169, Cr.P.C. and the same was approved by the Judicial Magistrate, Nara vid order dated 24.11.2020, hence it is a fit case for further inquiry, as such, applicant is entitled for the concession of bail.

 

4.         Conversely, learned counsel for the complainant has opposed the grant of bail to the applicant on the grounds that he is nominated in the FIR by name and with specific role; Cr.P.C.; that the DSP, Complaint Cell, Khairpur, exonerated the applicant from the charge on the basis of statements of defence witnesses, ignoring the 161 Cr.P.C statements of eye witnesses who have fully connected the applicant with commission of alleged offence.  

 

5.         The learned D.P.G. while adopting the arguments of learned counsel for the complainant has maintained that the applicant is involved in a heinous offense and ocular account is supported with the corroborative medical evidence.   

 

6.         Heard the learned counsel for the applicant, complainant, D.P.G and perused the material available on record with their assistance.

 

7.         It appears from the tentative assessment of the record available with the prosecution that the applicant is nominated in the FIR by name with specific role of causing firearm injury to the deceased on back side of his neck. As per FIR, three accused persons, including present applicant, fired three shots on the decease and the post-mortem report of the deceased also suggests three wounds of entry viz. (1) lacerated wounds on right side of skull temporal region (2) right side of posterior neck and (3) right side skull and three corresponding wounds of exit. Enmity between the parties is an admitted fact. Besides the complainant, there are two other eye-witnesses who have fully connected the applicant with commission of alleged offence, which falls within the prohibitory clause of section 497, Cr. P.C.  It further appears that the case of co-accused Mehboob, who was admitted to post- arrest bail by the trial court, is on different footings as no specific role has been assigned to him in the FIR, and since the case of the applicant is not at par with co-accused Mehboob, rule of consistency would not be available to him. It also appears that co-accused Ali Gul Jatoi was released by the police under section 169, Cr.P.C. as after registration of the FIR, complainant came to know about the name of un-identified accused as Ali Gul, later he (complainant) recorded his further statement to the effect that he had taken his name mistakenly due to resemblance of his face with the un-known co-accused person.  

 

8.         As regard delay of 22 hours in lodging of FIR, it has been stated in the FIR that after informing police through mobile phone and getting the post mortem of the deceased from RHC Chondko, the complainant lodged the FIR; hence, plausible explanation prima facie is available on record.  Even otherwise, delay in FIR is not ipso facto a ground for the grant of bail.  So far enquiry report of DSP, Complaint Cell, Khairpur is concerned, it appears that the alleged enquiry was conducted on the application of one Ali Nawaz, the father of co-accused Mehboob, wherein said DSP on the basis of statements of D.Ws. submitted his report stating that on the alleged day and time, the applicant and co-accused Mehboob were not present at the occurrence but in the Otaq of one Zahoor Ahmed Shah alias Abal Shah. Suffice to say, the veracity of plea of alibi would be determined at trial.

 

9.         From the tentative assessment of the evidence in hands of prosecution, I am of the view that prima-facie sufficient evidence is available against the applicant to connect him with the commission of alleged offence, carrying punishment for death and imprisonment for life. Every hypothetical question which could be imagined would not make it a case of further enquiry simply for the reason that it could be answered by the trial Court subsequently after evaluation of evidence.

 

10.       As a result of above discussion, the instant application is dismissed. The above observations are tentative in nature for the disposal of bail application and shall not influence the trial Court while deciding the case on merits.

 

JUDGE