ORDER-SHEET

IN THE HIGH COURT OF SINDH, CIRCUIT COURT LARKANA  

Crl. Bail Appln. No. S- 496 of 2022.

Date of hearing

Order with signature of Judge

28.11.2022.

1.         For orders on office objections.

2.         For hearing of bail application.

            Mr. Shahbaz Ali Brohi, Advocate for applicant.

            Mr. Aitbar Ali Bullo, Deputy Prosecutor General.

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Amjad Ali Sahito, J-  Through instant bail application, applicant Himath Ali son of Ali Nawaz Kehar seeks his release on post-arrest bail in a case registered vide Crime No.50/2013 with P.S Sultan Kot (District Shikarpur), for offence punishable under Sections 302, 324, 148, 149, 337-H (2) P.P.C. The applicant approached the trial Court with the same prayer, which has been declined by learned 1^st Additional Sessions Judge, Shikarpur, vide Order dated 12.04.2022.

            As per prosecution case, the allegation against applicant is that, he in company of co-accused persons came at scene of the offence and attacked upon complainant party, thereby causing murder of five persons and injuring one person, namely, Sher Khan. The present applicant Himath Ali and co-accused Abdul Karim are alleged to have fired pistol and kalashnikov shots respectively at P.W Sher Khan, which hit on vital parts of his body. While rest of co-accused are alleged to have fired upon deceased persons. The motive for the alleged incident as set out in the F.I.R is old murderous enmity between the parties.

            Learned counsel for the applicant pressed this bail application mainly on the ground that co-accused Abdul Karim has been granted pre arrest bail by this Court vide order dated 16.10.2017 and case of present applicant is identical, therefore, per learned counsel applicant also deserves same concession on the basis of rule of consistency.

            Conversely, learned D.P.G. opposed grant of bail to applicant on the ground that he is nominated in the F.I.R with specific role of making fire upon PW Sher Khan; that applicant is involved in the case which pertains to murder of five innocent persons and that the applicant remained fugitive from law for many years, as such, he is not entitled for concession of bail. 

            From perusal of the record it appears that, the F.I.R of the incident was registered by complainant Muhammad Saleh nominating the applicant with specific and active role of making fire upon PW Sher Khan, hitting on vital parts of his body. This is a case, in which five innocent persons have lost their lives. The applicant is alleged to have come at place of incident duly armed with pistol in company of co-accused and actively participated in the commission of alleged offence, in which five persons were done to death. As such, apparently the applicant also appears to be vicariously liable for the murder of five persons, besides active role of making assault upon PW Sher Khan. The medical evidence supported the ocular version. The prosecution witnesses have supported the version of complainant in their statements recorded by police in terms of Section 161 Cr.P.C. The offence, with which the applicant stood charged falls within prohibitory clause of Section 497 Cr.P.C. So for contention of learned counsel that, co-accused Abdul Karim with similar role has been granted pre arrest bail by this Court, as such applicant is also entitled to same concession and treatment on the basis of rule of consistency, suffice it to say that the co-accused Abdul Karim was granted bail on the ground that since the complainant party was absconding in F.I.R No.26/2016 of P.S Lakhi Ghulam Shah and proceedings were stopped without passing any final order whether conviction or acquittal and no legal purpose will be served to linger-on the instant application till appearance of the complainant. But, now the status of the case is changed, as perusal of the impugned order shows that PW Muhammad Ismail has engaged a counsel and has assured before the learned trial Court for appearance of the complainant and other material witnesses. This fact has obviously changed the stage of the trial.  Moreover, the case of present applicant is on different footings, as he remained fugitive from law for a noticeable period of about nine years after commission of the offence.

            All these factors prima-facie connect the applicant with commission of alleged offence, which does fall within prohibitory clause of Section 497 Cr.P.C, disentitling him to concession of bail. Accordingly, the bail application is hereby dismissed.

                                                       Judge

Ansari