ORDER SHEET

IN THE HIGH COURT OF SINDH,

CIRCUIT COURT, HYDERABAD.

                                              Cr. Bail No. S-589 of 2009                               

DATE         ORDER WITH SIGNATURE OF JUDGE

16.10.2009.

Mr. Shahnawaz Brohi, Advocate for the applicant.

Mr. Shahid Ahmed Shaikh, Assistant Prosecutor General Sindh for the State.

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AHMED ALI SHAIKH J:      The applicant seeks post arrest bail in crime No.27/2009 of Police Station Naukot for the offence punishable u/s: 394, 34 PPC.

The applicant approached the learned Judicial Magistrate Kot Ghulam Muhammad for bail but could not succeed. His bail plea was also declined by learned IInd Additional Sessions Judge, Mirpurkhas vide order dated 11.08.2009.

The relevant facts of the prosecution case are that on 04.07.2009 at 2200 hours, one Noor Hussain Rind lodged FIR stating therein that on 03.07.2009, he alongwith his brother Naheed Hussain was returning from Fazal Banbhro to his home on motorcycle. At about 2130 hours when they reached at Dhoro curve, adjacent to village Haji Dost Muhammad Rind, they noticed two persons on the head light of motorcycle. Both were with muffled faces, one of them was armed with country made pistol and other had hatchet. The culprits signaled and got stopped their motorcycle, meanwhile a culprit armed with pistol, aimed his pistol upon the complainant party and asked them to handover their motorcycle but complainant party resisted, following which the face of such accused became open and he was identified as Jani Khaskheli, who fired upon the complainant party, which hit on the chest and neck of the complainant. He made second fire which hit his brother Naheed Hussain at his index finger of his right hand, which was cut down. During such scuffle, the face of other person having hatchet also opened and the complainant party saw and will identify him on seeing. On the call of accused, their two companions, who were also with muffled faces and armed with hartchets, came there. On the hue and cry of the complainant party, P.Ws. Khalid Hussain and Qaim came running there. Thereafter accused Jani Khaskheli and another ran away towards Nafees Nagar while rest of the accused made their escape by motorcycle. The complainant party was brought at Government Hospital Naukot for treatment and they were referred to Hyderabad. After treatment, the complainant appeared at P.S and lodged the FIR.

During the course of investigation, accused Jani Khaskheli and Ali Hyder Athelo were arrested and later on they were sent up to face the charge. Co-accused Sachedino @ Sachoo and Shafi Muhammad were shown absconders.

It is inter-alia contended by the learned counsel for the applicant/accused that neither the name of applicant transpires in the FIR nor his features and figures have been given by the complainant though the complainant and P.W Naheed Hussain claimed to have seen the accused with open face at the time of occurrence. It is further contended that the FIR is delayed by one day and such delay is not explained properly. His next submission is that the applicant was arrested on 05.07.2009 whereas the identification parade was held on 07.07.2009, hence no sanctity can be attached with such identification parade. It is further submitted that though the recovery of hatchet has been shown from the accused but same is not stained with blood, hence possibility cannot be ruled out that same has been managed and foisted upon him.

Learned State counsel opposed the bail plea of the applicant on the ground that he has been correctly identified by the complainant and P.W Naheed Hussain and recovery of hatchet has been affected from him.

Perusal of the record shows that the name of applicant does not find place in the FIR, even the features and figures (hulia) of the applicant were not given in the FIR though the complainant party claimed to have seen the other accused at the time of occurrence, who participated in the alleged offence alongwith co-accused Jani Khaskheli but they did not mention his name in the FIR though applicant and complainant party are residents of came locality. The FIR is delayed by one day without plausible explanation. The identification parade was held after two days of arrest of the accused. So far the recovery of hatchet is concerned, mashirnama of recovery does not show that same is blood stained. Mashirnama of place of incident shows recovery of two empties of 12 bore and two empties of T.T pistol but same fact negates the prosecution version as in FIR, it is alleged that two fires were made by accused persons. The case is pending trial before Judicial Magistrate and he cannot pass sentence beyond three years.

Keeping in view the circumstances as stated above and dictum laid down in case of Manzoor Ali @ Mumtaz Vs. The state (2001 P Cr. L J 344 and case of Irshad Vs. The State (2007 MLD 881), I am of the opinion that at this stage there are no reasonable grounds to believe the applicants guilty of the offence punishable with death, life imprisonment or imprisonment for 10 years but from the circumstances it appears that his case requires further inquiry. I, therefore, allow this application and admit the applicant on bail subject to furnishing solvent surety in the sum of Rs.100,000/- and P.R. bond in the like amount to the satisfaction of learned trial court.

                        The bail application stands disposed of along with listed applications.

                        Vide short order dated 12.10.2009, the applicant was granted bail and these are the reasons in support of my short order.

                                                                                                            JUDGE.

A.K.C