IN THE HIGH COURT OF SINDH, BENCH AT SUKKUR

Crl. Bail Application No. S- 681/2021.

Crl. Bail Application No. S- 719/2021.

Crl. Bail Application No. S- 748/2021.

Date of hearing

Order with signature of Judge

1. For orders on office objection at Flag ‘A’.

2. For hearing of bail application.

O R D E R.

24-01-2022.

M/s Ayaz Ali Gopang, Qurban Ali Malano, Ali Ahmed Khan, Ameenuddin Khaskheli, and Shabbir Ali Bozdar Advocates for applicants/accused.

M/s Haji Shamsuddin Rajper and Fayyaz Ahmed Rajper, Advocates for complainant.

Mr. Aftab Ahmed Shar, Additional P.G.

AMJAD ALI SAHITO J., Through this common order, I intend to dispose of pre-arrest bail applications filed on behalf of applicants/accused Shaban, 2. Khan Zaffar Ali Khan, both sons of Mir Nawaz Sohoo 3. Hub Ali son of Sono Sohoo, 4. Liaquat Ali son of Sono khan Sohoo and the post arrest bail application filed on behalf of applicant/accused Ali Gohar son of Shuja Muhammad bycaste Sohoo in crime No.19/2021, offence u/s 302, 436, 114, 147, 148, 149, 452, 337-F(vi), 337-H(ii), 504 PPC registered at police station Korai, Taluka Moro, District Naushehro Feroze. Prior to this, the applicants/accused who are on interim pre-arrest bail, have filed such applications for grant of pre-arrest bail and post arrest bail filed by co-accused Ali Gohar, but the same were turned down by learned Additional Sessions Judge- (MCAC) Kandiaro vide order dated 15.10.2021 and Additional Sessions Judge-II Naushehero Feroze vide order dated 11.11.2021 respectively, hence they have filed instant bail application.

2. The details and particulars of the FIR are already available in the bail application and FIR, same could be gathered from the copy of FIR attached with such applications, hence, needs not to reproduce the same hereunder.

3. Mr. Ayaz Ali Gopang learned counsel files vakalatnama on behalf of applicants/accused Shabban, Khan Zaffar Ali Khan and Hub Ali in Criminal Bail Application No.S-681 of 2021 and contends that before registration of FIR the information was conveyed by one Ghulam Mustafa to the Police Station through telephone that due to dispute over the plot, accused Gul Bahar made fires upon his brother Manzoor Ali resultantly his brother became injured and they are going to hospital. On such information police reached at Taluka Hospital Moro and provided letter for treatment and subsequently post mortem was conducted as such the only informer was Ghulam Mustafa complainant of the incident but subsequently Abdul Samad acted as complainant and he involved as many as 9 persons in the commission of offence. He further submits that the role assigned against four accused persons namely Khan Zaffar Ali Khan, Liaquat Ali, Hub Ali and Ameen that they from their respective weapons viz. guns and repeater made direct fires upon Manzoor Ali brother of complainant which hit on his lumber region but in fact one gun fire was made and due to pellet injuries he has seven pallet injuries, same were exist wounds and same were hit on right elbow of the deceased Manzoor Ali. He further contended that the allegation against the applicants/accused that they have fired from their guns and as per sketch the accused persons have fired from the distance of 59 feet and it is settled law that when the fire is made from the gun the pallet will spread but none of the witnesses have received any single pallet injury to plead that they were present at the place of incident; that from the face of FIR it appears that the enmity exists between the parties and mala fide on the part of complainant that prior to this on the same dispute one Sardar Ahmed lodged FIR against 13 accused persons including present applicants/accused and as per medical certificate issued by the doctor the injuries received by the injured Abdul Samad was self-inflicted as such due to above enmity applicants/accused have been falsely implicated in this case. In support of his contention, he relied upon the case of Ehsanullah v. The State (2012 SCMR 1137), Kouro and another v. The State (2004 YLR 2434), Badaruddin and 2 others v. The State (2007 P.Cr.L.J 502) and Mashkoor v. The State (2009 P.Cr.L.J 110).

4. M/s Qurban Ali Malano and Ameenuddin Khaskheli Advocates appearing on behalf of the applicant/accused Liaquat Ali in Criminal Bail Application No. S-719/2021 also adopted the arguments advanced by Mr. Ayaz Ali Gopang in Criminal Bail Application No. S-681/2021 and further contended that there is general allegations that have been levelled against applicant/accused Liaquat Ali and his case requires further enquiry. He further contended that co-accused Gul Bahar, Khan Zaffar and Shahban have been released by police under section 169 Cr.P.C as there was no evidence against them. He relied upon the case of Sharif Khan v. The State and other (2021 SCMR 87), Khair Muhammad and another v. The State through P.G Punjab (2021 SCMR 130) and Maqbool Ahmed Mahesar v. National Accountability Bureau (NAB) through Chairman and others (2021 SCMR 1166).

5. Mr. Shabbir Ali Bozdar learned counsel for applicant/accused Ali Gohar in Criminal Bail Application No. S-748/2021 submits that role assigned against his client is that he has given Danda blow to P.W Mukhtiar Ali which hit on his finger, apparently which is also managed one. He has relied upon the case of Khiya Saba and another v. The State and others (2020 SCMR 340).

6. On the other hand learned counsel for the complainant as well as Additional P.G opposed for confirmation of interim pre-arrest and the grant of bail on the ground that names of applicants/accused transpire in the FIR with a specific role that they have made fires upon the deceased and resultantly he died on the spot. However, they have not controverted the investigation conducted by the police and as per Danistnama, one Ghulam Mustafa has given information to the police that due to dispute over the plot Gul Bahar Sohoo has made fires upon his brother Manzoor Ali who sustained fire hot injuries and they are going to the hospital. Lastly in support of his contention learned counsel for the complainant has relied upon the case of Mumtaz v. The State (2012 SCMR 556), Umar Farooque v. The State (2011 MLD 822), Gohram and anther v. The State (2012 MLD 1927), Allah Bachayo alias Bachoo v. The State (2013 P.Cr.L.J 1378) and Abu Bakar Siddique v. The State and others (2021 SCMR 5).

7. I have heard learned counsel for applicants, learned counsel for the complainant, Additional P.G for the State so also have gone through the material available on record.

8. In the case of Khair Muhammad and others v. The State through P.G Punjab and another (2021 SCMR 130) Hon’ble Supreme Court has held that while granting pre‑arrest bail even the merits of the case can be touched upon. It is a settled principle of law that every person has the right to get justice but with clean hands. As per contents of the FIR, the role assigned against applicant Khan Zaffar, Liaquat Ali, Hub Ali and Ameen that they have fired from their guns and repeaters upon the deceased Manzoor which hit him on the right side of the abdomen. Whereas In the Danistnama the information was conveyed by Ghulam Mustafa Sohoo the brother of the complainant to the police and as per his information on the dispute over the plot, Gul Bahar Sohoo has fired upon his brother Manzoor Ali who sustained fire shot injuries and subsequently died in the hospital and as per medical certificate the injured has sustained seven injuries adjacent to each other on the right side of abdomen and same are exist wounds which were hit on the right elbow.

9. Further story narrated by the complainant is unbelievable as at one place four accused persons namely Khan Zaffar, Liaquat Ali, Hub Ali and Ameen fired from their guns and repeaters to the deceased Manzoor Ali at the distance of 59 feet as per sketch prepared by Tapedar concerned and all the pallet injuries received on right side of the abdomen which apparently is not believable. Moreover, when the fire is made from a gun or repeater the pallets of the cartages surely spread but not a single prosecution witness or complainant has received pallet injury to believe that they were present at the place of the alleged incident. On the query of the Court as to whether the accused Gul Bahar, Khan Zaffar Ali Khan and Shabban were declared innocent in the investigation report and were released by the police under section 169 Cr.P.C to which learned counsel for the complainant as well as Additional Prosecutor General confirms that they were, hence the case of the applicants require further investigation. Furthermore learned counsel for applicants/accused pleaded mala fide on the part of the complainant that before this one Sardar Ahmed had lodged FIR No.05/2020 at Police Station Korai District Naushehro Feroze against all accused persons nominated in the instant case on the same dispute but subsequently as per Medical Certificate the said injuries were declared as self-suffered injuries. The charge has been framed and applicants are no more required for further investigation. The role assigned against the applicant/accused Ali Gohar who is in custody and that he caused Danda to blow to PW Mukhtiar which hit on his little finger and the said injury was declared by the Medical Officer as 337-F(vi) PPC which is punishable up to seven years and the same does not fall under the prohibitory clause of section 497 Cr.P.C. The applicant/accused Ali Gohar is in custody and his further detention in Jail will not bring any fruitful result in favour of prosecution as such he is also entitled to grant of bail.

10. Taking the guideline from the case-law cited by the learned counsel for the applicants/accused the learned counsel for the applicants/accused have made out a good case for confirmation of bail in the light of sub-section (2) of Section 497 CrPC, hence all the aforesaid bail applications are allowed and the interim pre-arrest bail already granted to the applicants/accused Shabban, Khan Zaffar Ali Khan, Hub Ali and Liaquat Ali in Cr.Bail Applications Nos. 681/2021 and Cr.Bail Application No.S-719/2021 is hereby confirmed on the same terms and conditions while the applicant/accused namely Ali Gohar son of Shuja Muhammad Sohoo in Cr. Bail Application No.S-748/2021 is granted post-arrest bail subject to furnishing solvent surety in the sum of Rs. 100,000/- (One lac) and PR bond in the like amount to the satisfaction of learned trial Court. Learned trial Court is at liberty to take action against the applicants/accused if they misuse the concession of bail. The case law relied upon by learned counsel for the applicants is quite distinguishable to the facts and circumstances of the present case.

11. Needless to mention that the observations made hereinabove are tentative in nature and would not influence the learned Trial Court while deciding the case of the applicants on merits.

12. The aforesaid bail applications stand disposed of in the above terms.

J U D G E

Irfan/P.A