IN THE HIGH COURT OF SINDH, BENCH AT SUKKUR

Cr. Bail Appln. No. S – 667 of 2020

Cr. Bail Appln. No. S – 767 of 2020

Applicants : Bhojo alias Din Muhammad S/o Seero Mal Shaikh &

Muzaffar Hussain alias Zafar Ahmed S/o Qadir Bux, Phulpoto,

Through Mr. Aftab Hussain Shar Advocate

Complainant: Vinesh Kumar,

Through Mr. Muhammad Ali Napar Advocate

Respondent : The State

Through Syed Sardar Ali Shah Rizvi, DPG for the State

Dated of hearing: 30.08.2021

Date of order : 30.08.2021

O R D E R

AMJAD ALI SAHITO, J – By this common order, I intend to dispose of the above captioned post-arrest bail applications arising out of the same Crime No.167 of 2020 registered at Police Station Shaheed Murtaza Mirani, District Khairpur for offences punishable under Sections 302, 120-B PPC. The bail applications of the applicants/accused have been declined by learned Additional Sessions Judge‑I/(MCTC), Khairpur vide orders dated 13.10.2020 and 03.11.2020, respectively.

2. The details and particulars of the FIR are already available in the bail application and FIR, therefore same could be gathered from the copy of FIR attached with such application.

3. It is, inter-alia, contended by learned counsel for the applicants/accused that the names of the applicants/accused are not transpiring in the FIR as this is an unseen incident; that the complainant has resiled from his earlier statement as setout in the FIR because after 15 days of the lodgment of the FIR his further statement was recorded by the police in which he has disclosed the names of the applicants/accused, which carries no weight in the eye of law; that the applicant/accused Bhojo alias Din Muhammad has been implicated by the complainant only on account of embracing Islam, which is nothing but to exert illegal pressure so that he may return to Hindu religion. He further submits that the challan of the case has been filed and the applicants/accused are no more required for the purpose of investigation. He lastly prayed that the applicants/accused may be admitted to bail. In support of his contentions, he relied upon the cases of Nouman Khan alias Roman vs. The State and others (2020 SCMR 666); Asfandyar Khan and another vs. The State and another (2020 SCMR 715); Abid Ali alias Ali vs. The State (2011 SCMR 161); Shahid Hussain alias Multani vs. The State and others (2011 SCMR 1673); Allah Ditta vs. The State and others (2012 SCMR 184); Muhammad Asif Javed vs. The State and another (2020 MLD 1896).

4. Conversely, learned counsel appearing for the complainant as well as learned DPG for the State prayed for dismissal of the bail applications by contending that the present applicants/accused are involved in the commission of the offence, as co‑accused Hashmat Lal in his statement has stated that he along with the present applicants/accused made plan to get the deceased Rajesh Kumar murdered through serial killer namely co-accused Wahid Bux alias Wahidoo alias Budho Shar and Sibghatullah alias Sabo Memon; that the motorcycle allegedly recovered from co‑accused Sibghatullah alias Sabo Memon, was used in the commission of the offence; that the offence with which the applicants/accused are charged entails capital punishment. Learned counsel for the complainant places reliance upon the case of Naseem Malik vs. The State (2004 SCMR 283).

5. I have heard the learned counsel for the parties and perused the record. It is an admitted position that this is an unseen and unwitnessed incident and the names of the applicants/accused do not transpire in the FIR. In the case of Allah Ditta vs. The State and others (2012 SCMR 184), the Honourable Supreme Court while granting bail to the accused held as under;-

“………..we have observed that occurrence in this case had taken place during a night, the same had remained un‑witnessed and the culprits had initially remained unknown. After about sixteen days of lodging of the F.I.R. the petitioner and his two brothers namely Hussain Bakhsh and Sawan had been implicated in this case through a supplementary statement made by the complainant. One of the said brothers of the present petitioner namely Hussain Bakhsh has already been admitted to post-arrest bail by the Lahore High Court, Lahore vide order dated 2-12-2010 passed in Criminal Miscellaneous No. 13309-B of 2010 and the role attributed to the said co-accused was somewhat similar to that attributed to the present petitioner inasmuch as the said co-accused had allegedly held the deceased by his arm whereas the petitioner had allegedly pulled a rope around the neck of the deceased and, thus, they had both allegedly taken an active role in the murder in issue.”

6. The reliance is also placed upon the case of Abid Ali alias Ali vs. The State (2011 SCMR 161), the Honourable Supreme Court while granting bail to the accused held as under;

“It is settled principle of law that bail cannot be withheld as punishment. There are various pronouncements in support of this principle. See Ch. Abdul Malik v. The State (PLD 1968 SC 349) and Manzoor and 4 others v. The State (PLD 1972 SC 81). It is also settled principle of law that ipse dixit of the police is not binding on the court. This proposition is also supported by Manzoor's case (supra). It may also be observed that even for purposes of bail, law is not to be stretched in favour of the prosecution as law laid down by this Court in Amir v. The State (PLD 1972 SC 27'7). It is an admitted fact that name of the petitioner is not mentioned in the F.I.R. but his name was included in the list of accused in supplementary statement. There is no explanation available in this regard, therefore, the case of the petitioner falls under the category of further inquiry, See Tahir Abbas v. The State (2003 SCMR 426). Although the challan has been submitted in the Court and the case was fixed for hearing but still prima facie the case of the petitioner appears to be one of further inquiry and is covered under provisions of section 497, Cr.P.C., then it becomes a right of accused that he be released on bail and practice of refusal in such cases where challan is submitted should not be bar to refuse a right. See Muhammad Ismail v. Muhammad Rafique and another (PLD 1989 SC 585). It is also settled principle of law that observations made by superior courts dealing with the bail matter are always tentative in nature.”

7. The applicants/accused have been allegedly involved in the instant case on the basis of statement of co-accused Sibghatullah alias Sabo Memon. I am also fortified by the case of Asfandyar Khan and another vs. The State and another cited (supra), relied upon by learned counsel for the applicants/accused, wherein the Honourable Supreme Court while granting bail to the accused has also observed that “the petitioners were not named in the crime report as being alongside the accused who gunned down the deceased; all the witnesses are unanimous on the number of accused as five; the omission is intriguing and by itself brings petitioners’ case within the remit of subsection (2) of section 497 of the Code of Criminal Procedure 1898. Furthermore, the applicants/accused are implicated in this case on the basis of the supplementary statement of the complainant which was recorded with delay of 15 days. In the case of Shahid Hussain alias Multani vs. The State and others, (2011 SCMR 1673), the Honourable Supreme Court while granting bail to the accused has held as under;

“The petitioner had not been nominated in the F.I.R. in any capacity whatsoever and his name had surfaced in this case for the first time through a supplementary statement made by the complainant on 20-5-2010, i.e. almost a month and a half after the alleged occurrence. A perusal of that supplementary statement made by the complainant shows that no source of information regarding, the petitioner's involvement in the alleged occurrence had been disclosed or divulged therein by the complainant. It is admitted at all hands that no test identification parade has been held in this case. The prosecution has so far relied upon an extra-judicial confession allegedly made by the petitioner and his co-accused before three witnesses and also upon some recoveries allegedly affected from the possession of the petitioner and his co-accused. The learned Additional Prosecutor-General, Punjab appearing for the State has, however, remained unable to contradict that the alleged extra judicial confession is a joint confession and even the alleged recoveries are joint recoveries and, thus, their evidentiary worth may be next to nothing. The learned counsel for the petitioner has drawn our attention towards the fact that a co-accused of the petitioner namely Jawad Ahmad, attributed a role similar to that ascribed to the petitioner, has already been admitted to post‑arrest bail by the Lahore High Court, Lahore vide order dated 16-11-2010 passed, in Criminal Miscellaneous No. 12755‑B of 2010. For the reasons recorded above we have felt sanguine that the case against the petitioner calls for further inquiry into his guilt within the purview of subsection (2) of section 497, Cr.P.C.”

8. The applicants/accused are in jail and they are no more required for the purpose of investigation. In such circumstances, the applicants/accused have made‑out a case for grant of bail in view of subsection (2) of Section 497 Cr.P.C. Consequently, the instant bail applications are allowed and the applicants/accused are enlarged on bail subject to furnish solvent surety in the sum of Rs.2,00,000/- (Two Lacs) each and PR bond in the like amount to the satisfaction of trial Court. The case-law relied upon by learned counsel for the complainant is on distinguishable facts and circumstances hence cannot be relied upon.

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

Judge

ARBROHI