ORDER SHEET
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Date Order with signature of Judge
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FOR HEARING
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Date of hearing 13.04.2009
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Mr. Hidayatullah
Abbasi, advocate for the applicants alongwith the applicants.
Mr. Saleem Akhtar
Buriro, Addl. Prosecutor General, Sindh for the State.
Mr. Muhammad Ashraf
Kazi, advocate for the complainant.
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The applicants Mitho son of Hot, Muhammad Hassan son of Muhammad Ilyas, Muhammad Sajan son of Mir Muhammad and Habibullah son of Muhammad, who are four (4) out of the thirteen (13) nominated accused in Crime No.03/2009, Police Station Khiporo, District Sanghar, have moved this application under Section 498, Cr.P.C. for seeking pre-arrest bail in the said crime.
2. In order to understand properly the allegations of the complainant against the applicants/accused in the commission of said crime, which had purportedly occurred on 05.01.2009 at 3:30 P.M. near Village Modhkar Road, Deh Ranak Dahar, Taluka Khipro at a distance of 55/60 Kilometres from the police station towards its East. The true English translation of complaint No.03/2009 is reproduced as under:
“Complainant is that I reside at the above given address. Namely Hanif s/o Mir Muhammad (ii) Sikiladho s/o Abdullah Rajar (iii) Muhammad Saleh s/o Noor Muhammad Rajar brought the robbed Van of Jamaities (In fact jamalies) from Tando Adam and left it t our lands. Thereafter they informed the Police that the van robbed from Tando Adam was stalled in the land of chopanies. For that the Sanghar Police raided our lands and took away the Van. We thereafter complained to them in a neighbourly traditions that they had stalled the robbed Van in our land and thus they had committed excess against us by giving spy information to Police. We also told them to compensate us in the way as neighbourly tradition. On this Muhammad Hanif and his men came to us and told us that we should go to them to their village Modhakar on 05.01.2009 where settlement is scheduled. On this yesterday on 05.01.2009 I, my maternal uncle Ismail s/o Ali Chopan (ii) Niaz Muhammad s/o Ismail (iii) Anwar s/o Ramzan Chopan (iv) Khan Muhammad s/o Ali Muhammad (v) Ghani s/o Muhammad Ramzan (vi) Muhammad Ayub s/o Ali Muhammad Chopan reached at Modhakar by the side of road for settlement. Meanwhile Photo s/o unknown Rajar with Kalashankov in hand (ii) Mitho s/o Rajar having a rifle in his hand (iii) Hassan s/o Ilyas Rajar with a Repeater in his hand (iv) Sajan s/o Mir Muhammad Rajar having a double barrel gun in his hand (v) Habibullah s/o Mir Muhammad Rajar having a double barrel gun in his hand (vi) Hanif s/o Mir Muhammad Rajar having a Rifle in his hand (vii) Khuda Baksh s/o Mir Muhammad Rajar having a double barrel gun in his hand (viii) Khuda Baksh s/o Mir Muhammad Rajar having a hatchet in his hand (ix) Saleh s/o Mir Muhammad Rajar having a lathi in his hand (x) Abdul Rahim s/o Mir Muhammad Rajar with a lathi in his hand (xi) Master Jiando s/o Shafi Muhammad Rajar with a lathi in his hand (xii) Ibrahim s/o Mir Muhammad having a double barrel gun in his hand reached there. They immediately besieged us. Thereafter by show of weapons they snatched his licensed Repeater from my maternal uncle Muhammad Ismail and told us that if we wanted our safety we should go back and that they were taking away Ismail and his son with them. Thereafter within our view Photo Rajar, Hanif Rajar, Muhammad Saleh, Sawal, Sikilahdo and Abdul Rahim took away my maternal uncle Ismail in vehicle No.BA-5123 and No.BB-8149 towards sand mounds, whereas the rest of the accused took Niaz Muhammad, the son of my maternal uncle after blind folding and beating him towards their houses. They also made firing in the air towards us. As a result we returned to our village. Thereafter we informed Nekmards (headmen), who advised us that it was a matter of neighbourhood and that we should wait till next day. However, nobody has so far contacted us as such, I have come to complain that the above named accused persons together duly armed, after committing rioting on the pretext of settlement sent for us to their village, gave us threats of instant death and have abducted my maternal uncle Muhammad Ismail and his son Niaz Muhammad with an intention to kill them. Complaint is for investigation.”
3. On filing of this pre-arrest bail application, vide order dated 05.01.2009, applicants were admitted to interim pre-arrest bail, while after competition of investigation of the crime, police challan has been submitted before the trial Court.
4. Mr. Hidayatullah Abbasi, learned counsel for the applicants, making reference to the incident dated 05.01.2009, at the outset made reference to another earlier F.I.R. No.02/2009, Police Station Khipro, relating to the same incident, to show that it was the complainant party, who were aggressors in the incident and the story of incident narrated in Crime No.03/2009 is its counter version. To appreciate properly the case of the applicants’ side about the happening of the incident, the true English translation of complaint No.02/2009, lodged by Khuda Bux son of Mir Muhammad on 06.01.2009 at 0015 hours, is also reproduced as under:
“Complaint is that I reside at the above given address. About 20/25 days back Muhammad Ismail Chopan and others had committed robbery of a Van and brought it in their village. About this the owners of the Van with the aid of Sanghar police had raided their village and secured the robbed Van. The allegations about this raid was levelled by Muhammad Ismail Chopan and others on my brother Muhammad Hanif and cousin Muhammad Saleh Rajar to the effect that we had given the spy information to police for such raid. We told them that we had not given spy information to police and also that we were willing to get the matter settled in community tradition. However, Ismail Chopan and others did not accept our suggestion and became aggrieved with us. Today in the evening at about 5:00 P.M. while we were available in our house when the persons namely Muhammad Ismail Chopan s/o Ali Chopan with Repeater in his hand (2) Muhammad Ayoob s/o Ali with Single Barrel Gun in his hand (3) Khan Muhammad s/o Ali Muhammad with a hatchet in his hand (4) Nek Muhammad s/o Ismail with a hatchet in his hand (5) Niaz Muhammad s/o Ismail with a Single Barrel Gun in his hand (6) Abdul Ghani s/o Ramzan with a lathi in his hand (7) Bhutto s/o Muhammad Ramzan with a lathi in his hand (8) Anwer alias Neo (Eino) a lathi in his hand (9) Jhuro s/o Ishaq Chopan with a lathi in his hand (10) Faiz Muhammad s/o Punhoon Cholyan (Chopan) with a lathi in his hand and 2 unknown persons whom I can identify on seeing them, came in a Potohar Jeep and LGT Jeep. They called us from outside of our house on which I, my brother Muhammad Hanif and cousin Muhammad Saleh s/o Noor Muhammad Rajars came out Muhammad Ismail after hurling abuses threatened that they would kill us at once. Meanwhile my uncle Allah Bachayo s/o Kamal Rajar and other villagers reached there. My uncle Allah Bachayo intervened and tried to pacify them on which Niaz Chopan made straight firing from his gun at my uncle Allah Bachayo with an intention to kill him. The shot hit him on his left shoulder, whereas the other accused persons fired in the air from their respective weapons in their hands. On fire reports the other village people also reached there. On seeing them all the accused persons succeeded fleeing away by boarding in their Potohar and LGT Jeeps. However, during that process we apprehended Niaz s/o Ismail alongwith his gun. Thereafter we transported our injured uncle Allah Bachayo Rajar through his son Muhammad Juman Raja to Khipro for treatment. After that we intimated the facts to our village headmen. Then we brought apprehended person Niaz Chopan with the gun at Khipro where we learnt that my cousin Muhammad Juman after obtaining letter from Police Station had taken his father Allah Bachayo to Khipro Hospital after administration of first aid for treatment there he took him to Hyderabad for further treatment to Hyderabad. The apprehended person Niaz Chopan and his Single Barrel Gun detailed below are produced with a complaint that all the above named accused persons after preplanning and duly armed committed rioting ad with a view to kill my uncle Allah Bachayo, Niaz Chopan directly fired at him and seriously injured him, whereas they other accused persons made firing in the air from the weapons in their hands, abused us and gave threats to cause our immediate deaths. Complaint is for investigation.”
5. Making reference to the contents of the above reproduced two F.I.Rs., learned counsel for applicants vehemently contended that leaving apart the story of the incident recorded in the earlier F.I.R. No.02/2009, Police Station Khipro, by the applicants’ side through Khuda Bux, even from the contents of the subsequent F.I.R. No.03/2009, Police Station Khipro, of the same incident lodged by Ghulam Sarwar, the role assigned to the four applicants before this Court is only that they all caught hold of Niaz Muhammad after blind folding him and had taken him to their houses. The subsequent development of this position is that admittedly said Niaz Muhammad alongwith the weapon allegedly recovered from him was produced by the applicants’ side and handed over to the police alongwith his weapon, and further details of the incident, incorporated in Crime No.02/2009 are self-explanatory and prove the innocence of applicants. He, therefore, argued that from no stretch of imagination any role of causing harm to the life of deceased Muhammad Ismail son of Ali Chopan can be attribute to the present applicants, thus it is a case where mala-fide involvement of the applicants in the commission of said crime is apparent from the material on record and they are, therefore, entitled to be admitted to pre-arrest bail. Learned counsel also submitted that 161, Cr.P.C. statements of the prosecution witnesses in Crime No.03/2009 were recorded by the police 11 days after the incident, which in itself sufficient to show that it was an afterthought that these P.Ws. attempted to involve all the family members of the applicants’ side in the commission of crime. He also submitted that in the given facts and circumstances of the case, delay of more than 24 hours in lodging of F.I.R. is also meaningful. He further made reference to the injuries sustained by one Allah Bachayo from the applicants’ side, which fact was concealed by complainant Ghulam Sarwar at the time of lodging of F.I.R. No.03/2009.
6. Summing up his submissions, learned counsel submitted that as per the story narrated in Crime No.03/2009, the complainant has divided the applicants’ party into two groups, one, who had allegedly taken away Muhammad Ismail son of Ali Chopan, whose dead body was subsequently found after three days having several bullet injuries on his body and the other consisting of applicants and few other persons, who had detained Niaz Muhammad, when he attacked on them at their village and had subsequently produced him at the police station alongwith his weapon. He thus prayed that interim pre-arrest bail granted to the applicants may be confirmed.
7. Mr. Muhammad Ashraf Kazi, learned counsel for the complainant in Crime No.03/2009, initially attempted to argue before this Court that the lodging of F.I.Rs. No.02/2009 and 03/2009, Police Station Khipro relate to two different incidents, which have occurred at 3:30 P.M. and 5:00 P.M. respectively. However, when confronted with the contents of the two F.I.Rs. and other material placed on record, learned counsel did not seriously press this point. In this regard the learned Addl. Prosecutor General, Sindh, after going through the police papers also brought to the notice of the Court that as per police record, the place of occurrence of the two incidents is one and the same and only one incident has taken place regarding which these two counter F.I.Rs. have been lodged. Next, Mr. Muhammad Ashraf Kazi made reference to the 161, Cr.P.C. statements of the prosecution witnesses Niaz Muhammad, Abdul Ghani, Muhammad Ayub, Khan Muhammad and Anwar Ali as well as Post Mortem Report of deceased Muhammad Ismail son of Ali Chopan and Medical Certificate about the injuries of Niaz Muhammad son of deceased Muhammad Ismail. Making reference to these documents, he strongly argued that the manner in which Muhammad Ismail son of Ali Chopan deceased was brutally murdered by the accused party, requires serious consideration and further all the prosecution witnesses in their 161, Cr.P.C. statements have fully supported the case of the prosecution against the accused party, therefore, at this stage, in the nomination of present applicants in the crime no mala-fide can be attributed to the police or the complainant’s side, nor any case for grant of pre-arrest bail is made out in their favour. He also submitted that grant of interim pre-arrest bail to the applicants on 15.01.2009 has seriously hampered the investigation of the said crime, therefore, it is yet another ground, which disentitles confirmation of pre-arrest bail in favour of the applicants.
8. Mr. Saleem Akhtar Buriro, learned Addl. Prosecutor General, Sindh, in his submissions firstly challenged the maintainability of this bail application, having been directly filed before the High Court instead of approaching the trial Court in the first instance. He, however, did not dispute that in exceptional circumstances, as deemed fit by the High Court, application for pre-arrest bail can be directly entertained by the High Court. His next submission is that by implication of Section 149, PPC the effect of the commission of whole crime, which has resulted in the murder of Muhammad Ismail son of Ali Chopan, is not confined only to the first group of persons from the applicants’ side against whom allegations have been levelled that they have taken away and murdered Muhammad Ismail, but also on the second group of persons including the applicants, who unlawfully detained and maltreated Niaz Muhammad and later on produced him before the police at the time of lodging of F.I.R. No.02/2009, and also foisted a weapon upon him from their own side. Learned Addl. Prosecutor General, however, did not dispute that the two F.I.Rs. of the incident, reproduced above, are in relation to only one incident and that as per counter version of the parties involved in the incident, it is yet to be seen that, who were the aggressors at the time when incident took place on 05.01.2009 between 3:30 P.M. or 5:00 P.M.
9. Mr. Hidayatullah Abbasi, learned counsel for the applicants replying to the submissions of M/s. Muhammad Ashraf Kazi and Saleem Akhtar Buriro, submitted that, as held in 1998 S.C.M.R. 570, 1993 S.C.M.R. 550 and 1996 S.C.M.R. 1553, recording of 161, Cr.P.C. statements of the prosecution witnesses after 11 days without any explanation, has lost all its efficacy. He also made reference to the 161, Cr.P.C. statement of Niaz Muhammad and other P.Ws. to make its comparison with the contents of the F.I.R. No.03/2009, to show that even at this stage there are material contradictions in the case of the prosecution. He also strongly disputed the assertion of Mr. Muhammad Ashraf Kazi that grant of interim of pre-arrest bail to the applicants on 15.01.2009 has in any manner hampered the investigation of the said crime. He submitted that the statement of all the prosecution witnesses and applicants have already been recorded by the police and after completion of investigation, challan has also been submitted before the trial Court, as such allegation against the applicants is mere concoction. Further according to the complainant’s own case, the four applicants have not indulged in any firing at the time of incident, therefore, recovery of weapon from any one of them was even otherwise not material.
10. I have carefully considered the submissions of the parties counsel and perused the bunch of material placed on record by them. Prima facie, it appears that the two F.I.Rs. No.02/2009 and 03/2009, Police Station Khipro are counter F.I.Rs. in respect of the same incident, which had taken place near the village of the applicants. How and under what circumstances, the complainant party consisting of so many persons have gone to the village of applicants’ side and under what circumstances, one group from the applicants’ side has allegedly taken away Muhammad Ismail son of Ali Chopan with them and how the other group from the applicants/accused party has detained Niaz Muhammad, are the things, regarding which version of the two rival parties is entirely different. However, even from the contents of F.I.R. No.03/2009 and narration of facts in the 161, Cr.P.C. statements of prosecution witnesses, which were admittedly recorded 11 days after the incident, it is clear that the role assigned to the present applicants is of less heinous nature and even the complainant in that context has exonerated them to some extent from the murder of deceased Muhammad Ismail son of Ali Chopan. It is also evident from the record that it is a case of counter version, where it is yet to be seen that at the time of occurrence, which party was the aggressor and under what circumstances, the brutal murder of Muhammad Ismail had taken place.
11. Further the possibility of mala fide involvement of the applicants in the commission of crime with the object of roping as many members of their family in the commission of crime as possible cannot be ruled out. Moreover, at this stage, the case of applicants is one, which needs further enquiry as contemplated under Section 497(2), Cr.P.C.
12. This being the position, interim pre-arrest bail allowed to the applicants is confirmed in the same terms as contained in the order dated 15.01.2009.
13 Before parting with this order, it may be observed that discussion made in this order is based upon tentative assessment, therefore, the trial Court while proceeding with the main sessions case will ignore such observations and discussion and will be free to apply its independent mind for deciding the fate of the criminal case arising out of F.I.R. No.03/2009, Police Station Khipro.
14 Foregoing are the reasons for the short order dated 13.04.2009, whereby the earlier interim pre-arrest bail of the applicants was confirmed.
Karachi,
Dated: CHIEF
JUSTICE
Azeem