ORDER-SHEET
IN THE HIGH COURT OF SINDH, CIRCUIT COURT LARKANA
Crl. Bail Appln. No. S- 567 of 2022.
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Date of hearing |
Order with signature of Judge |
15.12.2022.
1. For orders on office objections.
2. For hearing of bail application.
Mr. Ali Nawaz Ghanghro, Advocate for applicants.
Mr. Mazhar Ali Bhutto, Advocate for complainant.
Mr. Aitbar Ali Bullo, Deputy Prosecutor General.
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Amjad Ali Sahito, J- Through this bail application, applicants Akhtiar Ali Shiakh and Aijaz Jatoi seek their admission to post-arrest bail in Crime No.30/2022 of P.S Kanga, District Larkana, registered for offences punishable under Sections 302, 324, 148, 149 and 337-H (2) P.P.C.
The bail application moved by the applicants before the learned Additional Sessions Judge-VI, Larkana was declined by means of Order dated 16.11.2022 passed in Crl. Bail Appln. No.536 of 2022.
The facts of prosecution case as depicted from para 3 of the impugned are reproduced as under:
“On 03.07.2022 complainant Agha Khan Jatoi appeared at P.S Kanga and registered the F.I.R, whereby stating that they were available in their Otaq along with private guard Mujahid Bhurgri. At about 11.00 a.m. three vehicles emerged there. The accused Sikander Jatoi, Hadi Bux Jatoi, Zaman Jatoi being armed with deadly weapons alighted from one vehicle. The accused Sultan and two unidentified accused duly armed with deadly weapons alighted from second vehicle and from third vehicle two unidentified accused being armed with deadly weapons alighted. The accused Sikander Jatoi made fires from his weapons upon Mujahid Bhurgri, which hit him, the accused Hadi Bux made fires from his weapons upon Aamir Zaib (son of complainant), which hit him and thereafter all the accused made aerial firing and went away; hence this F.I.R.”
Learned counsel for applicant mainly contended that, F.I.R is delayed for two hours; that names of applicants do not appear in the F.I.R; however for the first time their names were 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 more than one month and no source of identifying the applicants is disclosed in such statements. Learned counsel further submits that, no active role of making fire etc. has been assigned to the applicants even in further statements. 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 applicants, but he opposed grant of bail in favor of the applicants.
Whereas, learned advocate for complainant vehemently opposed the bail application on the ground that the applicants have been nominated in further statements of complainant and prosecution witnesses and that there is also recovery of crime weapon from their possession, which connect them with commission of the offence, which is an offence of heinous nature and falls within prohibitory clause of Section 497 Cr.P.C.
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 their names were 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 applicants 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 applicants one of further enquiry in terms of subsection (2) of Section 497 Cr.P.C. Accordingly, the instant bail application stands allowed. Consequently, the applicants Akhtiar Ali Shaikh and Aijaz Jatoi are admitted to post arrest bail upon their furnishing solvent surety in the sum of Rs.100,000/- (One hundred thousand rupees) each and P.R bonds 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/*