ORDER SHEET

THE HIGH COURT OF SINDH, CIRCUIT COURT LARKANO

Ist. Crl. Bail Appln. No.S-487   of 2023.

Date	Order with signature of Judge

1. For orders on office objection ‘A’.

2. For hearing of bail application.

16.11.2023

Mr. Asif Ali Abdul Razak Soomro, advocate for applicant.

Mr. Ali Anwar Kandhro, Addl. P.G.

Mr. Ghulam Ali Bozdar, advocate for the complainant.

O R D E R.

Muhammad Saleem Jessar, J.- Through this application, applicant Makhno son of Nazar Muhammad, seeks his release on bail in Crime No.04/2011, registered with Police Station City, Napar-Kot, District Shikarpur, under Sections 302, 324, 364, 427, 148, 149, PPC.

2.                     The case, having been challaned in the year 2011, is now pending trial before the learned 3^rd Additional Sessions Judge, Shikarpur, vide Sessions Case No.657/2011 Re-State v. Makhno & others. Initially challan was submitted under Section 512, Cr.PC showing all the accused persons named in the FIR as absconders. However, the applicant after his arrest on 26.06.2023, approached the trial Court for his release on bail, which was declined vide order dated 18.08.2023. Hence, this application.

3.                     Per prosecution case, on 31.01.2011, at 8.30 a.m., the present applicant along with co-accused Muhammad Iqbal, Dost Ali, Jaffer, Saifuddin, Bhooro, Mehar and Mehrab, being armed with Kalashnikovs, intercepted complainant, his uncle Hazoor Bux, cousins Muhammad Suleman @ Bagan and Sher Khan near Lanjo Laro(diversion) on Shikarpur-Kandhkot National Higway, while they were going in their car to attend hearing of a case before the Court at Shikarpur. The accused persons took complainant’s uncle Hazoor Bux towards jungle, where co-accused Dost Ali, Jaffer and Muhammad Iqbal committed his murder by making fires upon him; whereas co-accused Saifuddin and Bhooro fired at and caused injuries to PWs Suleman and Sher Khan. Hazoor Bux died at spot, whereas the complainant accompanying injured Muhammad Suleman and Sher Khan obtained letter from police station left both injured at the hospital for their treatment and then went back to police station and lodged FIR, stating that prior to this incident one Muhammad Murad, the father of co-accused Muhammad Iqbal Nindwani, was killed in which case present complainant was involved and that case is still pending.

4.                     Learned counsel for the applicant submits that the applicant has been implicated falsely in this case by the complainant party in the background of longstanding murderous enmity, which is admitted in the FIR. He further submits that though there is noticeable absconsion on the part of the applicant but it is not sufficient to withhold the concession of bail solely on this ground when no overt act has been assigned to him. He further submits that as far as pendency of series of the cases against applicant is concerned, same have been managed by the complainant party in collusion with police due to the previous enmity; however, after his arrest, the applicant is facing trial in all those cases. Learned Counsel, therefore, submits that his mere absocnsion without any specific role makes the case against the applicant to be of further enquiry, therefore, he may be granted bail. In support of his contentions, he places reliance upon the cases reported as Fahad Hussain and another v. State through Prosecutor General Sindh (2023 SCMR 364), Syed Amanullah Shah v. The State and another (PLD 1996 Supreme Court 241), Hidayat Khan v. The State and another (2023 SCMR 172), Qurban Ali v. The State and another (2017 SCMR 279) and Mitho Pitafi v. The State (2009 SCMR 299).

5.                     On the other hand, learned Addl. P.G., appearing for the State, opposes the bail application, on the grounds that the applicant is not only named in the FIR, but he also facilitated co-accused in the commission of heinous offence; besides, has remained fugitive from law for a long time, therefore, is not entitled for bail.

6.                     Mr. Ghulam Ali Bozdar, learned counsel for the complainant, also opposes the bail application on the ground that though the applicant has not been assigned any active role yet deceased was abducted and he being participant of the said gang is liable to be prosecuted for his vicarious liability and since the offence with which he stands charged is heinous one, as such, bail cannot be granted to such an accused as a matter of routine. He further submits that during his absconsion he had been involved in number of criminal cases. As far as no role assigned to him is concerned, per Mr. Bozdar, it is no ground for grant of bail, more particularly, when he remained fugitive from law for about 13 years and the offence with which he has been charged carries capital punishment. In support of his contentions, he places his reliance upon the reported cases of Nazeer v. The State (2020 P.Cr.L.J Note 85 Page 108), Sidra Abbas v. The State and another (2020 SCMR 2089), Abdul Hakem v. The State (2010 MLD 1608), Ibrahim v. The State (2012 YLR 983) and Mamaras v. The State and others (PLD 2009 Supreme Court 385). Hence, he prays that instant bail application may be dismissed.

7.                     Heard learned counsel for the applicant, learned Addl. P.G. and learned counsel for the complainant and perused the available material with their able assistance.

8.                     In this unfortunate incident one person, namely, Hazoor Bux Muqadam (headman) had lost his life and two others, namely, Sulleman and Sher Khan sustained injuries at the hands of accused persons. From perusal of the FIR it appears that present applicant Makhno Nindwani is shown armed with K.K, however, no overt act has been assigned against him and his mere presence at the scene of incident has been shown by the complainant.

9.                     The complainant claimed to be an eye-witness of the alleged incident, but it is strange rather surprising that he was not caused any injury or even scratch by the accused. The factum of longstanding enmity between the parties creates lot of doubt in the veracity of the allegations, which makes the prosecution case highly doubtful. It is settled law that if even slightest doubt arises in the prosecution case, it’s benefit must be extended to the accused, particularly at bail stage.  Reliance in this regard can be placed on the case of Syed Amanullah Shah (supra).

10.                   The question of sharing common intention and vicarious liability can only be determined after recording evidence of the prosecution witnesses. As far as contention advanced by the learned counsel for the complainant that the applicant had remained fugitive from law for about 13 years is concerned, in this regard it is worth to mention here that if an accused has got good     prima facie case on merits, then mere his absconsion would not intercept the way while extending concession of bail to him. 

11.                   It is well-settled principle of law that every accused would be presumed to be blue-eyed boy of law until and unless he may be found guilty of the alleged charge and the law cannot be stretched upon in favour of the prosecution, particularly, at the bail stage. In the circumstances, the case against the applicant is of further enquiry as contemplated under sub-section (2) of Section 497, Cr.P.C. Consequently, instant bail application is hereby allowed. The applicant shall be released on bail subject to his furnishing solvent surety in the sum of Rs.500,000/-(Rupees five hundred thousand only) and P.R bond in the like amount to the satisfaction of learned trial Court.

12.                   Needless to mention here that the observations made herein-above are tentative in nature, which shall not prejudice the case of either party at trial.

Judge

M.Y.Panhwar/**