IN THE HIGH COURT OF SINDH BENCH AT SUKKUR

Crl. Bail Application No.S-318 of 2022

DATE OF HEARING

ORDER WITH SIGNATURE OF JUDGE

For hearing of bail application.

Date of hearing 16.01.2023.

Mr. Deewan Dhanraj, Advocate for applicant.

Mr. Nisar Ahmed Mallah, Advocate for complainant.

Mr. Aftab Ahmed Shar, Additional Prosecutor General.

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O R D E R

Abdul Mobeen Lakho, J; Through instant bail application, applicant Nasrullah son of Muhammad Daud Abro, seeks admission on post-arrest bail in Crime No.01/2021 Police Station, Tagar for offence punishable under Sections 302, 120-B, 109, 34 PPC. Earlier his bail application was declined by III-Additional Sessions Judge, Naushehro Feroze vide order dated 08.09.2021.

2. Facts of prosecution case in brief are that Complainant Abdul Khalique Abro lodged FIR on 31.01.2021 at Police Station, Tagar stating that Sarfraz Abro was annoyed with him due to matrimonial dispute. It is alleged that complainant has Agricultural land in deh Sahita, near agricultural land of Ali Nawaz Sahito where a tube well adjacent to his land is installed. On 28.01.2021 complainant alongwith his son Abdul Wahid aged about 21/22 years cultivating wheat crop. At evening time, complainant’s brother Daim Ali and his nephew Khuda Bux brought meal, after taking meal complainant left his son Abdul Wahid for looking after tube well went to check water to the crop, at 1930 hours complainant heard noice they went there and saw in the light of torch that accused Sarfraz son of Rehmatullah Abro, Nasrullah son of Muhammad Daud Abro (applicant), 3. Sadam son of Shahan Abro were on top of his son and were strangulating the son of complainant, to whom complainant party made hakals and they made their escape good, thereafter number of injuries could be seen on the body of Abdul Wahid; mark of bite, brick injury on the head and strangulation mark on the neck; however, mobile phone of Abdul Wahid was missing and he was unconscious. Complainant brought injured to the Hospital and on the way to hospital he died. He then brought dead body at Govt. Hospital Tharushah, conveyed such information to the police, after completing necessary formalities postmortem was conducted, and after burial he appeared at Police Station where he lodged such FIR.

3. Learned Counsel for the applicant contended that applicant has falsely been implicated by the complainant due to matrimonial enmity. He contended that no specific role is ascribed against present applicant and the specific role of bite injuries is attributed to main accused Sarfraz Abro. He further submitted that all the PWs are related inter se and no independent person has been cited as witness. He further contended that co-accused Razi Khan has been granted bail by the learned Additional Sessions Judge-I, Naushehro Feroze hence, on the basis of further statement; the case of present applicant is on better footing to that of co-accused who has been granted bail by the learned trial Court. He contended there is a delay of three days in lodging of the FIR which has not been properly explained by the complainant. By contending so, he prayed for grant of bail. He relied upon the cases of Jamsher Mazari v. The State (2009 YLR 387), 2. Ghulam Hyder v. The State (2021 SCMR 1802) Kouro and another v. The State (2004 YLR 2434), Juma Khan alias Sajid and another v. The State (2014 YLR 1019) and Muhammad Arif v. The State and others (2013 MLD 70).

4. As against, learned Additional Prosecutor General assisted by learned Counsel for complainant vehemently opposed the grant of bail and supported the impugned order passed by learned III-Additional Sessions Judge, Naushehro Feroze. They contended that specific role is attributed against present applicant. They further contended that this is a case of a brutal murder of one innocent young boy and the present applicant has participated in the commission of murder of deceased Abdul Wahid by strangulating him and also caused him injury as according to Medical Officer cause of death of deceased is Asphyxia secondary to manual strangulation and fracture of cervical vertebrae that ultimately resulted in death. They contended that delay in lodging the FIR has been fully explained by the complainant. Eye witnesses have fully supported the version of complainant in their statements under Section 161 Cr.P.C statements. They prayed for dismissing the bail application. They relied upon the case of Munawar v. The State (1981 SCMR 1092)

5. I have considered the arguments advanced by learned Counsel for parties and have gone through the material available on record only tentative assessment is to be made. And perusal of record reflects that name of present applicant appears in the FIR with collective role of strangulation of the deceased which is corroborated by medical evidence. He also shared a common intention with the other co-accused in causing the death of deceased and has participation in the commission of offence, bringing the present accused under the 497(2) Cr.P.C. The matter was reported to the police with promptitude. On the very day of the incident complainant reported the matter to the police he then took injured to hospital and on the way to the hospital injured died. After conducting postmortem and funeral ceremony of the deceased, complainant appeared at Police Station and lodged the FIR of the incident hence, the delay has been explained. The prosecution witnesses in their 161 Cr.P.C statements have fully supported the version of FIR and as far as the question of recovery of torch is concerned that will be determined at trial after recording evidence; previous enmity as alleged was against accused Sarfraz and not against the present accused, there was no ground to unnecessary involves the present applicant in the commission of offence. The offence with which applicant/accused is charged falls within the prohibitory clause of Section 497(2) Cr.P.C. So far grant of bail to co-accused Razai Khan by the trial Court is concerned, his case is on different footings hence, the rule of parity is not attracted to the case of present applicant. Every case has its peculiar facts and circumstances, the case law cited today by the learned counsel for the applicant is distinguishable.

In view of above, I am of the considered view that the applicant/accused Nasrullah Abro has failed to make out a case for grant of bail. Accordingly, the bail application is dismissed.

6. Needless to mention that whatever stated above is tentative in nature and shall not influence the mind of learned trial Court.

Bail application stands disposed of in the above terms.

J U D G E

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