IN THE HIGH COURT OF SINDH BENCH AT SUKKUR

Cr. Bail Application No.S-53 of 2022

Applicant: Irshad Ali, through

Riaz Hussain Khaskheli, Advocate

Complainant: Manzoor Ahmed, through

Achar Khan Gabol, Advocate

State: Through Syed Sardar Ali Shah Rizvi

Additional Prosecutor General.

Date of hearing: 21-03-2022

Date of Decision: 21-03-2022

O R D E R

ZULFIQAR ALI SANGI, J.- Through instant bail application, applicant Irshad Ali son of Gul Muhammad Phul, seeks his post-arrest bail in Crime No.124/2021, registered at Police Station Gambat, for the offences u/s 302, 337-A(i), 337-F(ii), 147, 148, 149, 504 and 109 PPC. His earlier bail plea was declined by the learned Additional Sessions Judge Gambat, vide order dated 07.01.2022.

2. As per FIR the allegation against the applicant is that on 27.08.2021, he along with his companions caused lathi and iron blows on different parts of the body of Sohail Ahmed the son of complainant Manzoor Ahmed with the result he died in the hospital.

3. Learned counsel for the applicant has contended that the applicant is innocent and has falsely been implicated by the complainant with malafied intention and ulterior motive ; that there is delay of 17 hours in registration of F.I.R; that actually the deceased Sohail along with his companions had entered into the house of applicant on the night of incident in order to kidnap the wife of co-accused Rashid namely Mst. Arifa, however on awakening of applicant party they ran during which the deceased fell down and his head was hit with a stone and the applicant party lodged such FIR No.123/2021 against the complainant party as such in order to save their skin the complainant party had lodged this false FIR: that the complainant is not the eye witness of the incident; that it is a night time incident and source of identification is not disclosed; that the PWs are highly interested and their evidence cannot be relied upon.; that co-accused Rashid has already been granted bail by this court as such on the rule of consistency the applicant is also entitled for concession of bail. In support of his contention learned counsel for the applicant has placed his reliance on 2021 MLD 1709 and 2019 MLD 4.

4. Learned counsel for the complainant and APG have vehemently opposed the grant of bail and contended that the name of applicant transpired in the FIR with specific role of causing lahi blows to deceased: that the ocular evidence is supported by medical certificate; that the delay has been fully explained; that the offence falls within prohibitory clause of section 497 Cr.P.C; that all the witnesses have supported the version of the complainant in their 161 C.P.C statements. Lastly they prayed that bail application of the applicant may be dismissed.

5. I have heard learned counsel for the parties and have gone through the material available on the record with their able assistance.

6. Admittedly the name of the applicant/accused is mentioned in the F.I.R with specific role of causing injuries to the deceased Sohail Ahmed as well as sharing common intention with co-accused in committing murder of the deceased; the version given by the complainant in the FIR was 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 FIR has been explained by the complainant by stating that firstly he took the injured to police station and then hospital and after admitting the injured in hospital he came to Police Station and lodged the FIR; as regards the contentions of mistaken identification of accused in the night time is concerned, it is admitted position that the applicant and complainant party were already known to each other, therefore, there is no chance of mistaken identity; contention of learned counsel for the applicant that co-accused Rashid Ali has been granted bail by this court therefore on the rule of consistency applicant is also entitled for concession of bail, has also no force as he was assigned only the role of instigation as such his case is quite different to the case of present accused; so far the contention of learned counsel that the present FIR is a counterblast of FIR No.123/2021 lodged by the applicant party is concerned, it requires deeper appreciation of evidence and 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; the offence falls within prohibitory clause of section 497 Cr.P.C. The case law referred by the learned counsel for the applicant are based on different facts and circumstances to the case of present applicant.

7. From the tentative assessment of material available on record it is established that there is sufficient iota of evidence to connect the applicant with the commission of offence and the applicant has failed to make out his case for grant of post-arrest bail. Accordingly, instant criminal bail application stands dismissed.

8. 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