IN THE HIGH COURT OF SINDH, CIRCUIT COURT LARKANA
Crl. Bail Appln. No. S- 606 of 2017.
Applicant: Niazal Brohi Through Messrs Habibullah G. Ghouri, Ahmed Bux Abro and Kamran Ahmed Gorar, Advocates.
Complainant: Mir Hassan, present in person.
The State: Through, Mr. Aitbar Ali Bullo, Deputy Prosecutor General.
Date of hearing: 28.12.2018.
Date of order: 28.12.2018.
O R D E R
Adnan-ul-Karim Memon, J: The Applicant namely Niazal Brohi is seeking post arrest Bail in Crime No.18/2015, registered at Police Station Saddar, Kamber, for offences punishable under Sections 302, 148, 149 P.P.C. The complainant has alleged that the applicant along with other accused made straight fires upon his brother Raza Muhammad, who did not sustain the injuries and died, compelling the complainant to lodge FIR against the applicant and his accomplices.
2. I have noticed that the applicant filed Cr. Bail Application No. 771/ 2017 before the learned trial court, which was dismissed vide order dated 18.11.2017, thereafter he has filed the present Bail application, impugning the order dated 18.11.2017 passed by the learned Additional Sessions Judge-II Kamber. The findings of the learned Court below are based on the premise that the applicant is nominated in the subject crime with specific role of causing fire arm injuries to the deceased Raza Muhammad.
3. Mr. Habibullah G. Ghouri, learned counsel for the applicant has principally contended that, there is general allegation of making fires upon deceased but no specific injury or role has been assigned to the applicant; that during course of investigation co-accused Khadim Hussain and Muhammad Alam were let off by the police, by placing their names in column No. II of the charge-sheet; that co-accused Munir with similar role, has been granted bail by learned Sessions Judge, Kamber-Shahdadkot @ Kamber, vide Order dated 13.5.2017. Learned counsel has lastly submitted that the complainant Mir Hassan and eyewitnesses of the case have filed their affidavits before this Court, exonerating the applicant from commission of alleged offences and have extended their no objection for grant of bail to the applicant. In support of his contention, he has relied upon the case of Muhammad Najeeb v. The State (2009 SCMR 448). During the course of arguments, learned counsel for the applicant has filed statement dated 28.12.2018, whereby affidavits of son of deceased and his two widows, have been filed. The applicant, on the basis of aforesaid affidavits claims concession of bail.
4. I have inquired from the complainant Mir Hassan, who is present along with, Muhammad Juman son of deceased, Mst. Sanam and Mst. Manzooran, both widows of deceased, regarding compromise of the matter, some of the legal heirs of deceased present in Court make categorical statement that they have filed compromise application before the learned trial Court and there is likelihood that the aforesaid compromise application may be accepted. I have noted that prosecution has filed list of legal heirs of deceased, which explicitly shows that there are minor legal heirs of deceased, for which they have stated to have filed compromise application under Section 345 Cr.P.C, which is the proper course to be adopted by the parties under the law.
5. The learned Prosecutor has contended that, in view of no objection/ affidavits filed by complainant and eyewitnesses of the case he concedes and supports the stance of learned counsel for the applicant for the purpose of grant of bail to the applicant.
6. I have considered submissions of the parties and perused the material available on record, case law cited at the bar as well as impugned order passed by the learned trial Court in the aforesaid matter.
8. An important question arises in the present case, as to whether on the basis of affidavits of some of the legal heirs of deceased, concession of bail can be extended to the applicant/ accused?
8. To answer the aforesaid question, while deciding a bail application, only allegations made in the FIR, statements recorded under Section 161 Cr.P.C., nature and gravity of charge, other incriminating material against the accused, legal pleas raised by the accused and relevant laws have to be considered. I am of the tentative view that at the stage of consideration of bail application, either anticipatory or regular bail such affidavit could not be taken into consideration. Record reflects that the complainant had filed an application for cancellation of bail, granted to co-accuse Munir by the learned trial Court, which was supported by an affidavit, now he has changed his stance through another affidavit, which is highly uncalled for.
9. Learned counsel for the applicant has heavily relied upon the case of Muhammad Najeeb v. The State (2009 SCMR 448), and argued that once the legal heirs of the deceased, have pardoned the applicant/ accused and filed affidavits before this Court, then the case requires further enquiry into the guilt of the applicant/ accused. Therefore, concession of bail can be acceded to in favor of the applicant.
10. Tentative assessment of record reflects that, applicant is arrested and recovery of crime weapon was made from him, medical evidence/ report supports the version of the prosecution, regarding injuries received by the deceased. Prima-facie record does not reflect that the complainant had ostensible reason to falsely implicate the Applicant in a case of present nature. Therefore no case of further enquiry is made out on the aforesaid pleas.
11. Reverting to the plea raised by the learned counsel for the applicant regarding, rule of consistency, which is not applicable in the present case for the simple reason that, if the order granting bail to an accused by the trial Court is not supported by valid reasons, the same cannot form the basis for granting bail to a co-accused on the ground of parity and this Court is not bound to grant bail to an accused on the ground of parity even where the order granting bail to an identically placed co-accused contains reasons, if the same has been passed in flagrant violation of well settled principle and ignores to take into consideration the relevant factors essential for granting bail.
12. The Applicant has failed to produce any material to suggest that he is falsely implicated in the alleged crime, merely saying that the parties have patched up and in this regard have filed affidavits, exonerating the applicant of the crime is not sufficient to discard prosecution version as false at the bail stage, which is even otherwise a factual controversy and needs to be looked into by the trial Court, if the compromise application is filled by the parties under the law, proper course needs to be adopted in this regard.
13. I am of the tentative view that, at bail stage only tentative assessment of the record is to be made as discussed supra, the contents of affidavits of the parties cannot be made basis for grant of bail or rejection. Besides that the offence falls under Section 302 PPC, which is punishable with death or life imprisonment. The case law cited by the learned counsel for the applicant is quite distinguishable from the facts and circumstances of the present case in hand.
14. In view of the above facts and circumstances, the Applicant has not made out a case for grant of bail at this stage therefore; the instant bail application is dismissed.
15. The findings mentioned above are tentative in nature which shall not prejudice the case of either party at the trial stage. However, the learned trial Court is directed to record evidence of the material witnesses within a period of three months, whereafter the Applicant will be at liberty to move afresh bail application before the learned trial Court on fresh ground, if any.