ORDER SHEET

IN THE HIGH COURT OF SINDH CIRCUIT COURT LARKANA

1^st Crl. Bail Application No. S- 405 of 2017

DATE	ORDER WITH SIGNATURE OF JUDGE

1.For orders on office objection ‘A’

2.For Hearing of Bail Application

21.05.2018

Mr. Ghulam Sarwar Abdullah Soomro, Advocate for the applicants.

Mr. Sharafuddin Kanher, APG for the State.

Mr. Ahsan Ahmed Quraishi, Advocate for complainant.

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AMJAD ALI SAHITO, J.- Through the instant bail application, applicants Ashraf and Dawoo alias Ishaque Barach seek post-arrest bail in case/Crime No.03 of 2017, registered with Police Station, Mirokhan, for offence punishable u/s.302, 311, 34, 342, 506/2, 120-A and 120-B PPC, whereby their bail plea was turned down by learned Sessions Judge, Kamber-Shahdadkot at Kamber, vide order dated 03.08.2017.

2. Briefly stated the facts of the case are that on 23.01.2017, complainant, namely Khuda Bux Wadho lodged report with Police Station, Mirokhan, in which he mentioned that on 21.01.2017, one Muhammad alias Gulshan Khero, resident of village Nao Tharo being friend of Munawar Ali(brother of complainant), visited them. After having night meals, Muhammad alias Gulshan asked them that since there was no cot in their otaq, therefore, he would stay in nearby Primary School, as such they to make arrangements in the school. At about 10.00 p.m, the complainant and his cousin Khadim Hussain went to sleep in their house while guest Muhammad alias Gulshan and Munawar Ali went to sleep in the School on the cots. It is further alleged that on 22.01.2017, at about 2-00 a.m(night), complainant woke-up for passing urine, whereas according to him, the electric bulbs were glowing, meanwhile he heard cries from the school side whereupon the complainant awakened his cousin Khadim Hussain and his nephew Ameer Ali and all of them rushed towards the school and found four persons, two of them were having pistols and one of them duly armed with pistol was holding brother of complainant Munawar Ali from his legs while another person was holding him from his arms towards his head, whereas accused Muhammad alias Gulshan Khero had cut the neck of complainant’s brother with sharp knife (Chhuri), who was bleeding and riddling; in the meantime, the fourth accused having pistol stood near the door of the room, who while pointing his pistol asked the complainant party that in case they come near to them, would be done to death, as they have taken the revenge on account of honour killing(Ghairat). Thereafter, accused Muhammad alias Gulshan by removing loin-cloth of deceased cut his penis saying that this is the result of “Karo”. The complainant party then beseeched the accused persons but they over powered them and while confining them in the room fled away with their respective weapons by closing the door from outside. The complainant party also heard noise of motorcycles. Thereafter the relatives of the complainant came there and opened the door, who were informed about the factum of the incident. The complainant then saw his brother lying dead. Subsequently, the matter was reported with Police.

3. The investigation came into motion and in due course, the applicants were sent-up to stand trial before the competent Court of law.

4. Mr. Ghulam Sarwar Abdullah Soomro, learned counsel for the applicants contended that the applicants are innocent and have falsely been implicated in this case by the complainant with malafide intention; that the names of the applicants do not transpire in the FIR; that both the applicants are brothers inter-se and they were known to the complainant party prior to this incident, but their names were disclosed by the witnesses in their statements recorded under section 161 Cr.PC with delay of three days; that there is delay of about 36 hours in lodgment of the FIR though the distance between the place of incident and police station is about 04 kilometers which could easily be covered within half an hour; that no any incriminating article was secured from the possession of the applicants. He lastly prayed for grant of bail to the applicants.

5. Mr. Ahsan Ahmed Quraishi, Advocate for the complainant flatly opposed the grant of bail to the applicants on the ground that the delay in lodging the FIR has properly been explained and the names of both the applicants have been disclosed by the witnesses in their 161 Cr.PC statements; that there is sufficient material available on record to connect the applicants with commission of alleged offence. He thus lastly prayed for dismissal of instant bail application.

6. Mr. Sharafuddin Kanher, learned A.P.G conceded the arguments advanced by learned counsel for the complainant and opposed for grant of bail to the applicants.

7. I have heard the learned counsel for the respective parties and perused the record, which reflects that the names of both the applicants do not find place in the FIR but their names were disclosed by PWs Khadim Hussain and Ameer Ali(cousin and nephew of the complainant) on 25.01.2017 in their statements recorded under section 161 Cr.PC with delay of about three days to the incident, which reflects consultation, both these witnesses were present at the time of incident yet they did not disclose their names to the complainant. It is well settled principle of law that belated examination of a witness by police may not be fatal to prosecution but where delay is unexplained, accused has not been named in the F.I.R and circumstances justify that open F.I.R and delay have purposely been maneuvered to name accused later, such managed delay and gaps adversely affect prosecution case. The FIR of the present case was registered with delay of about 36 hours to the incident. In addition to this, both the parties had already visiting terms with each other. The role attributed to the present applicants in commission of the incident is only to the extent of facilitating the main accused to commit the murder of deceased Munawar Ali, which requires determination at trial. In these circumstances, the case against the present applicants requires further enquiry. It is well settled principle of law that the deeper appreciation of evidence is not permissible at bail stage and tentative assessment is to be made. The reliance in this context is made to the case of Mehmood Akhtar v. Nazir Ahmad (1995 SCMR-310), wherein the Hon’ble Supreme Court of Pakistan converted the petition into leave and admitted the appellant to bail. The relevant paragraph thereof is reproduced hereunder;-

“The learned counsel for the petitioner (C.P. 105/94) has relied on the case Basharat Hussain v. Ghulam Hussain etc. (1978 SCMR-357) wherein this Court refused to interfere with the order of High Court granting bail to accused person in a case who had held the deceased to facilitate the murder by the co-accused. While refusing leave to appeal in the above case, this Court made the following observations:

“It is quite clear from the F.I.R. that respondent No.1, was alleged to have held the deceased when his son Abdul Qayyum hit the deceased on the head. Respondent No. 1, is therefore, charged with facilitating the murder of the deceased. It has been rightly pointed out by the High Court that this question requires further enquiry, and the petitioner was entitled to bail.”

The above-quoted observations fully apply to the circumstances of the present case and we, accordingly convert Petition No.105 of 1994 into appeal and also the same and admit the appellant Rekhmat Hussain to bail in the sum of Rs.25,000 with one surety in the like amount to the satisfaction of trial Court.”

8. Having concluded above, and while relying upon the case of Mehmood Akhtar v. Nazir Ahmad (cited supra), I find that the learned counsel for the applicants has made out a case for further enquiry in terms of Subsection (2) of Section 497 Cr.PC. Consequently, present applicants, namely, Ashraf and Dawoo alias Ishaque are admitted to bail subject to their furnishing solvent surety in the sum of Rs.300,000/-(Three Lacs) each with P.R bond in the like amount to the satisfaction of learned trial Court.

9. 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 the applicants on merits.

JUDGE

Abid H. Qazi/**