THE HIGH COURT OF SINDH, CIRCUIT COURT, LARKANA
Criminal Bail Application No.S-570 of 2020
Applicants: Miran Khan Durrani, Mukhtiar Ali alias Mukhtiar Hussain and Furqan Ali present in person on bail.
Respondent: The State
Through Mr. Aitbar Ali Bullo, Deputy Prosecutor General, Sindh.
Criminal Bail Application No.S-586 of 2020
Applicant: Muzafar Ali Khalidi through Mr. Athar Abbas Solangi, Advocate.
Respondent: The State
Through Mr. Aitbar Ali Bullo, Deputy Prosecutor General, Sindh.
Date of hearing: 05.12.2022
Date of Order: 05.12.2022
O R D E R
AMJAD ALI SAHITO, J.- Through instant Criminal Bail Applications, applicants/accused Miran Khan Durrani, Mukhtiar Ali alias Mukhtiar Hussain, Furqan Ali and Muzafar Ali Khalidi seek pret-arrest bail in Crime No. 39/2020, offence under Sections 302, 34 P.P.C of the Police Station Waleed, Larkana. Prior to this, they filed such application, but the same was turned down by the Court of VI-Additional Sessions Judge/MCTC, Larkana vide Order dated 04.11.2020; hence they filed instant Criminal Bail Applications.
2. The details and particulars of the F.I.R. are already available in the bail application and F.I.R., same could not gathered from the copy of F.I.R. attached with such application, hence, needs not to reproduce the same hereunder.
3. Today applicant Muzzafar Ali Khalidi is called absent, learned counsel for the applicant submits that he is busy in his official training, as such he requests that his absence may be condoned for today; his absence is condoned for today.
4. Per learned counsel, applicant Muzzafar Ali Khalidi has no connection with the alleged offence; on the day of incident he was not present at place the incident and as per CDR he was available on 13.03.2020 at Ratodero and on 15.03.2020 he was available at Ghotki; as such he is not involved in the present case.
5. The instant Criminal Bail Applications were presented before this Court on 05.11.2020 and 12.11.2020 respectively and since then the same are pending without any tangible progress as on one or the other pretext, learned counsel for the applicants in Criminal Bail Application No.S-570 of 2020 has failed to proceed with the matter. Today applicants are present and state that their counsel has not come due to illness. It is also observed that on most of the dates of hearing, learned counsel for the applicants due to his old age is not appearing; as such this is a murder case, in which the applicants are enjoying their interim pre-arrest bail since last two years without any progress. In such circumstances applicants are present in Court on bail and they are directed to proceed with the matter. Applicant Miran Khan Durrani, the then S.H.O of the Police Station Waleed Larkana states that there was encounter between his ASI and the criminals; as such he was not involved in the case and he is innocent. On the other hand, accused Mukhtiar Ali alias Mukhtiar Hussain submits that before the day on incident his hand was fractured, as such he was unable to fire upon the deceased. Accused Furqan also in the same way claim his innocence; as such they request that bail already granted to them may be confirmed on the same terms and conditions.
6. On the other hand learned counsel for the Complainant as well as learned Additional Prosecutor General vehemently opposed the grant of bail to the applicants/accused.
7. Heard and perused. From perusal of record it reflects that this is a case of police custodial death, in which one person namely Mohsin Ali Shah aged about 14/15 years has lost his life. The case of the prosecution is that on 13.03.2020, complainant alongwith her son Mohsin Shah, cousins Nawab Shah and Momin Shah were present in their house when at about 07:00 p.m. accused S.H.O. Miran Khan Durrani, ASI Mukhtiar Ali Kalhoro, P.C Furqan Ali Jatoi and Muzafar Khalidi alongwith two unidentified accused duly armed entered into the house of complainant and forcibly took away her son Mohsin Ali Shah, when she approached the Police Station, the S.H.O. Miran Khan Durrani demanded Rs.10,00,000/- (Rupees Ten Lac only) for release of her son, but she showed her inability to arrange such a huge money. On 15.03.2020 in her presence the son of the complainant was called and S.H.O. Miran Khan Durrani fired with his pistol upon the deceased, which hit below the right knee of Mohsin Ali Shah, then he was shifted to hospital, but he succumbed to injuries. The claim of the police is that there was encounter with the accused persons, as he was a criminal person and during encounter he has lost his life. Presently police officials fire below the knee and they always called half fry, if the victim lost his life police always called it full fry. In the instant case, it was duty of the police officers that they have to save the life of the innocent persons and perform their duties in accordance with law. There is difference between the homicidal death and police custodial death. The concept and ingredients of police custodial death is quite different from the ingredients of homicidal death. In the instant case, admittedly the applicants nominated in the F.I.R. had took away Mohsin Ali Shah and he was detained in the police lockup and subsequently, admit half fry as such the ingredients of the police custodial death is very much available; as such the deceased has lost his life and ingredients of Section 302 P.P.C are also applicable. The ocular evidence finds support from the medical evidence. The prosecution witnesses have also supported the version of the complainant. No ill-will or malafide has been pointed by the learned counsel for the applicants for false implication of the applicants in this case. At bail stage only tentative assessment is to be made. Learned counsel and the applicants failed to make out the case for further investigation under sub-section (2) of Section 497 Cr.P.C. Accordingly, instant Criminal Bail Applications are dismissed having no merits. Since the case has been challaned, Investigating Officer, present in Court, is directed to take the police officials in to his custody and produce them before the Trial Court on the next date of hearing.
8. Needless to mention here that the observations made hereinabove are tentative in nature and would not influence the learned Trial Court while deciding the case of either party at trial.
J U D G E
Manzoor