ORDER-SHEET

IN THE HIGH COURT OF SINDH, CIRCUIT COURT LARKANA  

Crl. Bail Appln. No. S- 531 of 2022.

Date of hearing

Order with signature of Judge

21.11.2022.

1.         For orders on office objections.

2.         For orders on M.A. No. 4542/2022 (Exemption Application).

3.         For hearing of bail application.

            Mr. Abdul Hameed Mangi, Advocate for applicant.

            Mr. Sarfraz Khan Jatoi, Advocate for complainant.

            Mr. Aitbar Ali Bullo, Deputy Prosecutor General.

~~~~~~

Amjad Ali Sahito, J-     Through this bail application, applicant Abdul Sattar son of Muhammad Bux Mirbahar seeks his admission to post-arrest bail in Crime No.11/2022 of P.S Mahota, District Larkana, registered for offences punishable under Sections 302 and 34 P.P.C.

            The bail application moved by the applicant before the learned Additional Sessions Judge-III, Larkana was declined by means of Order dated 12.10.2022 passed in Crl. Bail Appln. No.1184/2022.

            The facts of prosecution case as depicted from para 3 of the impugned are reproduced as under:

                        “Complainant Abdul Ghani Kehar lodged F.I.R at P.S Mahota, stating therein that he has fish-pond in village Aagani. It is further stated by the complainant that on 17.4.2022, he, his brohter Hafez Rehman aged 29 years, his cousin Sanaullah and relative Sarwan Khan were available at the fish-pond in order to look-after; the electric bulbs were glowing, at about 11.30 p.m, four unidentified accused persons came, who faces were open; they were seen properly, if seen gain, they would be identified; out of them two were armed with pistols while remaining two having bludgeons in their hands. The accused persons having pistol directed the complainant party to remain silent while accused persons having bludgeons with intention to commit murder caused bludgeons blow on head and face of Hafeez Rehman. The complainant gave sake of Holy Quran to the accused persons, then all accused persons went away with their respective weapons towards northern side. Thereafter, the complainant saw that Hafeez Rehman had sustained injuries at his head and face, his teeth were broken; blood was oozing and within the sight of complainant party he succumbed to injuries. After postmortem and funeral process, the complainant lodged the F.I.R to the above effect agaisnt the accused persons.” 

            Learned counsel for applicant mainly contended that, F.I.R is delayed for two days; it is nigh time incident; that name of applicant does not appear in the F.I.R as well as in 161 Cr.P.C statements of witnesses; however for the first time his name was introduced in the case in further statements of complainant and prosecution witnesses recorded under Section 162 Cr.P.C, which too were recorded belatedly by twenty days and no source of identifying the applicant is disclosed in such statements. Learned counsel further submits that, no active role of making fire etc. has been assigned to the applicant even in further statements. He further contended that, after due investigation in the matter, the case was recommended for its disposal under cancel “A” class. In support of his contentions, learned counsel placed his reliance upon case of SOHNO BULLO Vs. THE STATE (2012 P.Cr.L.J Sindh 986), Muhammad Mithal alias Imam Bux v. The State (2012 YLR 515), Amir Bux v. The State (2012 YLR 668) and Abdul Rasheed and another v. The State (2012 YLR 486).

Learned D.P.G. appearing for the State could not controvert the above submissions advanced by learned counsel for the applicant, but he opposed grant of bail in favor of the applicant.  

            Whereas, learned advocate for complainant vehemently opposed the bail application on the ground that the applicant has been nominated in further statements of complainant and prosecution witnesses and that there is also recovery of crime weapon from his possession, which connects him with commission of the offence, which is an offence of heinous nature.

I have heard the learned counsel for the applicant, learned Advocate for complainant and learned D.P.G. as well as perused the material with their able assistance.

            Record reflects that, name of applicant is not appearing in the F.I.R; no marks of identification OR descriptions of unknown accused persons have been mentioned in the F.I.R. However, for first time his name was introduced in the case on the basis of further statements of complainant and prosecution witnesses recorded in terms of Section 162 Cr.P.C, which too are recorded belatedly. Even otherwise, no active role of making fire etc. has been assigned to the applicant in further statements of complainant and witnesses.

            This Court in the case of “SOHNO BULLO versus THE STATE 2012 P.Cr.L.J 986 (Sindh), while granting bail to accused, observed that “name of accused had not been mentioned in the F.I.R and he was implicated after eleven days of the occurrence by witnesses in their statements recorded under Section 161, Cr.P.C, therefore, reasonable grounds existed that the name of accused had been implicated after due deliberation and consultation and possibility of his false involvement  could not be ruled out; contents of F.I.R revealed that all three prosecution witnesses were present at the place of occurrence and they had seen the unidentified accused persons but they did not nominated accused in the F.I.R and took eleven days to acknowledge the accused and implicated him in their statements, which created doubt in the prosecution case.

            The facts of other cases cited by the learned counsel for applicant i.e. Muhammad Mithal alias Imam Bux v. The State (2012 YLR 515), Amir Bux v. The State (2012 YLR 668) and case of Abdul Rasheed and another v. The State (2012 YLR 486), are also very much applicable to the instant case. Perusal of above citations shows that in similar circumstances, this Court has extended concession of bail to the accused.

            A tentative assessment of all the above factors and the material available on record makes the case of applicant one of further enquiry in terms of subsection (2) of Section 497 Cr.P.C. Accordingly, the instant bail application stands allowed. Consequently, the applicant Abdul Sattar is admitted to post arrest bail upon his furnishing solvent surety in the sum of Rs.100,000/- (One hundred thousand rupees) and P.R bond in the like amount to the satisfaction of learned trial Court.

            Needless, to mention that the observations made herein above are tentative in nature and would not prejudice case of either party at trial.

                                                                             JUDGE

Ansari/*