IN THE HIGH COURT OF SINDH
BENCH AT SUKKUR
Crl. Bail
Application No.S-736 of 2023
1. For orders on O/objection at
flag-A.
2. For hearing of bail
application.
Date
of hearing 18.12.2023
Syed Murad Ali
Shah, Advocate for applicant.
Mr. Ghulam
Mujtaba Jakhar, Advocate for complainant
Syed Sardar
Ali Shah, Addl. Prosecutor General for State.
O R D E R
ZULFIQAR ALI SANGI, J; Through this bail application the
applicant Saleem son of Ghulam Qasim Leghari seeks post-arrest bail in Crime No.33/2020 Police Station, Sorah for offences punishable under
Sections 302, 324, 337H(ii), 337A(i), F(i), 114, 148, 149 PPC. Earlier his bail application was declined by Additional
Sessions Judge-/(MCTC), Khairpur vide order dated 22.10.2022.
2. Facts of the case are
mentioned in the FIR and copy whereof is attached with bail application
therefore, there is no need to re-produce the same.
3. It is
contended by the learned Counsel for the applicant that applicant has falsely been implicated by the
complainant with malafide intention and ulterior motives due to
enmity; that there is 24
hours delay in lodging of the FIR for which no plausible explanation has been
furnished by the complainant; that twelve persons have been nominated in the
FIR, however, three were unknown and there are five injured persons and two are
the deceased; that during investigation three accused persons have been let-off
by the Investigating Officer; that co-accused Ranjhan, Ashique Hussain,
Muhammad Amin, Saeed Khan, Sikandar have already been granted bail by the trial
Court while accused Jaffer Hussain has been granted bail by this Court hence,
rule of parity is applicable to the case of present applicant. Under these
circumstances he prayed for grant of bail.
4. As against, Syed
Sardar Ali Shah, learned Additional Prosecutor General assisted
by Mr. Ghulam Mujtaba Jakhar, learned Counsel for complainant vehemently opposed the bail
plea and supported the impugned order passed by learned Additional Sessions
Judge-I
/(MCTC), Khairpur. They also contended that
specific role of firing from Repeater upon deceased Ahmed Khan is attributed
against present applicant and the repeater was recovered from him. Delay is
explained as injured was referred to hospital, however, complainant was with
injured persons in Hospital. Indeed, on merits, the applicant is not entitled
to bail as he made straight fires upon deceased Ahmed Khan from the Repeater within
the sight of complainant who died on spot and another person also lost his life
without
any reason/rhyme which act apparently on face of it is heinous
one. Lastly, they prayed for dismissal of bail to accused. They
placed reliance upon the case of Allah Dewayo Shahani vs.
The State through Prosecutor General, Sindh (2023 SCMR 1724).
5. I have
considered the arguments advanced by learned Counsel for parties and have gone through the
record with their able assistance.
6. Perusal
of record reflects that name of present applicant/accused appeared in the FIR
with specific role of firing with Repeater upon the deceased Ahmed Khan who on
receiving firearm injury on his chest had died at spot. The applicant also actively
participated in the commission of offence alongwith his other accomplices
resulting
two innocent persons have been done to death while the others become injured. The
PWs have fully supported the version of complainant which is further corroborated
by the medical certificates and the postmortem issued by the medical officer. The offence for which the applicant/accused has been charged carried
punishment up to death and the same falls within the prohibitory clause of
Section 497(2) Cr.P.C. The Supreme Court in the case of Ghani Khan vs. The State and
another (2020 S C M R 594), has held as under:-
After
hearing the learned counsel for the petitioner, learned counsel appearing on
behalf of the State and perusal of available record, it has been observed by us
that the petitioner is named in the FIR with specific role of firing at the
complainant HazratUllah, which as per the statement of the complainant, hit him
on his right thigh and right side of his chest. The said allegation is prima
facie supported by the medical evidence. The offence alleged against him falls
within the prohibitory clause of section 497(2) Code of Criminal Procedure. In
these circumstances he is not entitled to the concession of bail.
In the case of Ghulam Qammber Shah vs. Mukhtiar Hussain and
others reported in (PLD 2015 Supreme Court 66), the Supreme Court has cancelled
the bail granted by the High Court by observing as under:-
On
merits of the case we have noticed that respondent No.1 was attributed a
specific firearm injury on the neck of Zahid Hussain who has so far stood by
his allegation against the respondent in that respect and he is prima facie
supported by the medical evidence. In these circumstances it could not be said
that the case against respondent No.1 called for further inquiry into his guilt
for the purposes of releasing on post-arrest bail.
7. It further appears that case of
co-accused namely Ranjhan,
Ashique Hussain, Muhammad Amin, Saeed Khan, Sikandar and Jaffer Hussain who
were admitted to post-arrest bail by the trial Court as well as by this Court,
is on different footings as they have not charged for causing injuries to the
deceased persons and the role of present applicant is that he made straight
fire from his repeater upon deceased Ahmed Khan who by receiving the same on
his chest had died. Under these circumstances rule of consistency would not be
available to applicant. It is settled law that bail application (s) are to be
decided tentatively without going in to the merits in deep. From
the tentative assessment of the material available on record I am of the view
that there appear reasonable grounds for believing that the applicant is
involved in the case where two innocent persons lost their lives and others
received injuries. Result; thereof this bail application is dismissed.
8. Needless
to mentioned here that the observations made hereinabove are tentative in
nature and shall not cause prejudice to the right of either party at trial.
J U D G E
Ihsan/*