IN THE HIGH COURT OF SINDH CIRCUIT COURT LARKANA
Criminal Bail Application No. S-504 of 2017
Applicant: Hazaro son of Meeral by caste Oghahi, through Mr.Shahbaz Ali Brohi, Advocate.
Complainant: Mst.Lal Khatoon through Mr.Saeed Ahmed Bijarani, Advocate
State: Through Mr.Raja Imtiaz Solangi, A.P.G.
Date of hearing: 02.04.2018.
Date of Order: 23.04.2018.
O R D E R
AMJAD ALI SAHITO-J:-Through instant application, applicant Hazaro Oghahi seeks post-arrest bail in Crime No.11/2016, registered at Police Station, Ghora Ghat, for offence punishable under section 302,147,148,149 PPC.
2. Precisely, the relevant facts leading to disposal of instant application are that on 23.07.2016, complainant Mst.Lal Khatoon alongwith her uncle Aitbar and son Shoukat Ali went to meet her brother Attaullah in village Saifal Khan Chachar, where at about 12.00/12.15 (night), they identified on the light of bulb and charger accused namely Kabeer, 2.Hakim, 3.Sharafuddin, all sons of Chachar, 4.Hazaro son of Meeral, 5.Ali Anwar son of Hazaro, 6.Muhammad Ali son of Hazaro, 7. Ali Akbar son of Hazaro, all by caste Oghahi, alongwith one unknown culprit, duly armed with T.T pistols, came there. Out of them, accused Kabeer Chachar challenging her brother Attaullah that he has insulted him while demanding cash of Rs.64,000/-, therefore, he will kill by declaring him Karo. The complainant then beseeched the accused not to kill her brother Attaullah, whereupon accused Kabeer, Hazaro and Ali Anwar made pistol shot fires upon her brother Attaullah with intention to kill him, which hit him on left of his abdomen, he fell down raising cries and died within their sight. The accused in order to save their skin from the murder of Attaullah leveled a false allegation of Karap over Attaullah and then returned to their house, thereafter the complainant heard fire shot report from their house. The dead body of the deceased was then taken to P.S Ghora Ghat where the police did not register their FIR and gave letter for postmortem examination on the dead body of deceased Attaullah. Thereafter, the complainant again approached the police for registration of her FIR but to no avail. Then she got registered her FIR on 30.07.2016, after obtaining such order from the Court of learned Sessions Judge/Ex-officio Justice of Peace, Kashmore @ Kandhkot.
3. It is pertinent to mention here that on 24.07.2016, at about 1900 hours, first FIR of the present incident was registered by one Arbab Ali Chachar, wherein it was mentioned by him that on 23.07.2016, he alongwith his cousin Dhani Bux and nephew Imdad Ali were chit-chatting in the courtyard of their house situated at village Saifal Khan Chachar, at about 12.30 a.m, accused Hakim Chachar came in their house and committed murder of Mst.Faizan by causing her gunshot injuries while declaring her Kari with Attaullah. Subsequently, the said accused went outside the house and then also committed murder of Attaullah by causing him gunshot injuries by declaring him Karo. The dead bodies of both the deceased were then taken to P.S Ghora Ghat, from where the same were shifted to Civil Hospital Kandhkot for postmortem examination through police. After postmortem examination, the dead bodies were handed over to their legal heirs, thereafter such FIR bearing Crime No.09/2016, u/s 302,311 PPC was registered with P.S Ghora Ghat. It appears that during course of investigation of Crime No.09/2016, the police inspected the place of incident and secured two empty white color cartridges of 12 bore from there under a mashirnama, and then arrested accused Hakim Ali Chachar alongwith crime weapon viz.SBBL gun. Later-on, complainant Mst.Lal Khatoon filed application before learned Sessions Judge/Ex-Officio Justice of Peace Kashmore @ Kandhkot for lodging the second FIR of the present incident, which was accordingly allowed vide order dated 29.07.2016, thereafter she lodged the instant FIR bearing Crime No.11/2016. The police after completion of usual investigation submitted report under section 173 Cr.PC for disposal of the FIR under “C” class but the learned Judicial Magistrate did not agree with the report of police and took the cognizance of the offence.
4. Learned counsel for the applicant inter-alia contended that the applicant is innocent and has falsely been implicated in this case by the complainant with malafide intention and ulterior motives; that prior to this incident Mst.Suhni wife of applicant had lodged FIR bearing Crime No.53/2016, u/s.365-A, 6/7 ATA at P.S Ghouspur, against sons and uncle of the complainant and on account of such enmity the present applicant was falsely booked in this case, as according to the FIR bearing Crime No.09/2016, accused Hakim Ali Chachar committed murder of Attaullah and Mst.Faizan one after other by declaring them as Karo-Kari and it is case of two versions, which requires determination at trial. He lastly prayed for grant of bail to the present applicant.
5. On the other hand, learned counsel for the complainant argued that there was no malafide on the part of the complainant to implicate the present applicant in this case falsely; that the applicant after committing murder of Attaullah had also killed Mst.Faizan just to save him from the legal consequences of murder of Attaullah, in these circumstances, the present applicant is not entitled for concession of bail and he lastly prayed for dismissal of the bail application.
6. Learned Additional Prosecutor General for the State conceded the arguments advanced by learned counsel for the complainant and opposed for grant of bail to the present applicant.
7. I have heard the learned counsel for the parties at length and perused the record.
8. It has borne out from the record that it is case of two versions contended in the two FIRs. It is for the trial Court to determine as to which version is true and correct. The incident is said to have taken place on 23.07.2016, in respect of which two FIRs were registered. The first FIR bearing No.09/2016 was lodged by one Arbab Ali on 24.07.2016 at 1900 hours and the second FIR bearing No.11/2016 was lodged by complainant Mst.Lal Khatoon on 30.07.2016 at 1830 hours, at the same police station. The version contended in both FIRs has already been mentioned above in the paragraph No.2 and 3, and not to be repeated. It would be suffice to say that in the FIR No.11/2016, the incident has been divided in two parts, in the first part complainant Mst.Lal Khatoon disclosed that the present applicant alongwith co-accused murdered Attaullah within their sight but in the second part of the FIR, it has not been disclosed by her that how Mst.Faizan died and they did not witness her murder. In both the FIRs, two different sets of the accused as well as witnesses have been shown regarding murder of deceased Attaullah and Mst.Faizan. In the first FIR No.09/2016, accused Hakim Ali committed murder of deceased Attaullah and Mst.Faizan with gunshot wherein the police secured two white color empty cartridges of 12 bore from the place of occurrence and on 27.07.2016, accused Hakim Ali was arrested alongwith gun used for committing murders of the deceased. In the FIR No.11/2016, accused persons have committed murder of deceased Attaullah by causing him pistol shot injuries as alleged by complainant Mst.Lal Khatoon and there is no recovery of even a single empty from the place of occurrence in it. In the first FIR No.09/2016, the motive has been shown as Karo-Kari. In the second FIR No.11/2016, the accused Kabeer and others are alleged to have murdered deceased Attaullah on demand of his outstanding amount of Rs.64,000/-. The enmity between the parties is evident from the FIR bearing Crime No.53/2016 lodged by Mst.Suhni wife of the present applicant against the sons and uncle of the complainant Mst.Lal Khatoon, which cannot be lost of sight. It is pertinent to mention here that the deeper appreciation of the evidence is not permissible at bail stage. Admittedly, this case is of two versions i.e one put-forth by the complainant Mst.Lal Khatoon and second by complainant Arbab Ali, which version is true and correct, it shall be determined by the learned trial Court after recording the evidence. Nothing has been secured from the present applicant to connect him with commission of alleged offence. The investigation of the case has been completed and he is no more required for further investigation. No useful purpose would be served while keeping the applicant behind the bars for indefinite period. In this context, the reliance is placed upon case of Shoaib Mehmood Butt vs. Iftikhar-ul-Haq and three others(1996 SCMR-1845), wherein the Hon’ble Supreme Court of Pakistan has held that;
“16. In case of counter-version arising from the same incident, one given by complainant in F.I.R and the other given by the opposite party case law is almost settled that such cases are covered for grant of bail on the ground of further inquiry as contemplated under section 497(2), Cr.PC. In such cases normally, bail is granted on the ground of further enquiry for the reasons that the question as to which version is correct is to be decided by the trial Court which is supposed to record evidence and also appraise the same in order to come to a final conclusion in this regard”.
9. For what has been discussed above, the case of the present applicant becomes one of further enquiry as covered by Sub Section (2) of Section 497 Cr.PC. Accordingly, the instant application is allowed and the present applicant is granted post-arrest bail subject to his furnishing solvent surety in the sum of Rs.300,000/-(Three Lacs) and P.R bond in the like amount to the satisfaction of learned trial Court.
10. Needless to mention here that the observations made hereinabove are tentative in nature and would not influence the trial Court while deciding the case of applicant on merits.
J U D G E
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