ORDER SHEET

IN THE HIGH COURT OF SINDH BENCH AT SUKKUR

   Crl. B. A. No. S -   295 of 2019.

 

 

Applicant:                     Ashraf Ali Thebo

                                      Through Mr. Sohail Ahmed Khoso

                                      Advocate

 

Complainant:                 Moumin Ali

                                      Through Mr. Haji Shamsuddin Rajper

                                      Advocate.

                                     

The State:                      Through Mr. Zulifqar Ali Jatoi

                                      Addl.P.G.

                            

 

Date of hearing 18th June, 2019.

Date of order:     18th June, 2019

 

                                         O R D E R

 

Adnan-ul-Karim Memon, J- The Applicant, namely Ashraf Ali Thebo is seeking Pre-arrest Bail in Crime No.114/2018, registered for offences under section 302, 337-H2, 148, 149, PPC at Police Station, Kot Diji, District Khairpur.

2.  The prosecution has set-up the case against the present Applicant on the plea that he has played vital role by straight firing from his pistol upon deceased, namely Rajib Ali (cousin of the complainant), which hit him and he  succumbed to his injuries at the spot. The prosecution story is supported by the Medical evidence as well as statements of PWs and Recoveries as well as Forensic Reports . The applicant has taken the plea of Alibi that on the alleged fateful day i.e. 13.7.2018, he was available within the Court premises of learned Civil Judge and Judicial Magistrate Khairpur, in connection with court case No 28 of 2018. He relied upon the order dated 13.7.2018 passed by the learned Civil Judge and Judicial Magistrate, Khairpur in criminal case No. 28 of 2018 (Re- State vs. Ghulam Muhammad and others) and  Investigation Report of police officer, namely Ghulam Ali Jumani, in Crime No.114 of 2018. An excerpt of the Report is reproduced as under:-

“16.   FINDINGS:

 

          The undersigned has conducted fair and impartial investigation of subject case, minutely perused the case papers, heard local persons of vicinity, and conducted spot investigation wherefrom facts verified secretly and openly. After entire investigation, facts cam on surface that:-

g). Meanwhile, couple of defence  witnesses also appeared before the undersigned and stated in their statements that nominated accused namely Ashraf and Rafique Ahmed both sons of Muhammad Bux Thebo are innocent in subject case because on the date & time of offence, they both were went to attend the Honourable Court at Khairpur City and were not present on spot, such CDR of phone number of accused Ashraf has collected by the undersigned in which he is locating in Khairpur City up to 1146 hours, but undersigned has secretly came to know that both above named accused  have abetted the other accused namely  Muhib & others for committing offence of subject case because nominated accused Ashraf Thebo is a main culprit whose dispute  over said fish pond is running with Meeral Thebo (father of deceased Rajib Ali), so that contention can not be held without abetment of accused Ashraf  and Rafique. However, accused Muhib Thebo & others have committed the offence of subject case on the abetment of accused Ashraf and Rafiq both sons of Muhammad Bux Thebo, hence they both accused have committed the offence punishable under section 109 PPC.

 

17.     RECOMMENDATIONS:

i.Nominated accused namely 1.Muhib, 2.Hussain Dino both sons of Gulab , 3.Azeem s/o Gulan, 4.Zahid s/o Ahmed, 5.Amjad s/o Imdad Ali, 6.Ghulam Sarwar s/o Mir Muhammad, 7.Gulsher s/o Gulzar, 8.Ashraf and 9.Rafique both sons of Muhammad Bux, all by caste Theba alongwith 10/11 other unknown accused are recommended for sent-up in subject case on the charges of offence punishable under section 302, 148, 149, 109, 337-H(2) PPC, in the light of above facts.

ii.Alleged accused namely 1.Nisar s/o Muharram Thebo and 2.Ramzan s/o Sadoro Thebo are hereby recommended for releasing u/s 497 Cr.P.C due to lack of evidence, in the best interest of justice.

 

          This is submitted for favour of kind perusal and passing further appropriate orders thereon. Any order passed by this Honourable Court in this regard will be complied with in letter and spirit.

 

3.       Initially the Applicant being aggrieved by and dissatisfied with the inclusion of his name in the aforesaid crime, approached the Court of learned Sessions Judge Khairpur for grant of Pre-arrest Bail, however on administrative grounds, his Bail Application was  transferred to the Court of Additional Sessions Judge-II, Khairpur and he was granted Pre-arrest Bail vide order dated 27.4.2019, but subsequently the same was recalled vide order dated 11.5.2019 on the premise that he made straight fire upon the deceased Rajab Ali, which hit him on his person and he died at the spot. The Applicant being aggrieved by and dissatisfied with the rejection of his Pre-arrest Bail Application has approached this court on the very day and he was granted ad-interim Bail in the aforesaid crime by this Court.

3.   Mr. Sohail Ahmed Khoso learned counsel for the Applicant has briefed  me on the facts that  due to some dispute between the parties over Fish Pond, the Complainant lodged a criminal case against the Applicant and others on the allegations that on 13.7.2018, at about 1330 hours, the Applicant along with co-accused came at the spot and caused Murder of  his cousin namely Rajab Ali  by firing upon him through his pistol; that investigation was carried out and the Applicant was found innocent on the premise that he was not available at the spot, rather he was  in attendance in the court of learned Civil Judge and Judicial Magistrate, Khairpur in criminal case No. 28 of 2018 on the very day; that during the course of investigation no conclusive finding has been given against the present Applicant by the Investigating officer. However, he was recommended for offence u/s 109 PPC          Learned counsel for the Applicant states at the bar that the case of Applicant requires further enquiry into his guilt as to whether Section 109 PPC is attracted or not;  whether he has played vital role in the alleged crime or not as portrayed by the prosecution, which requires further enquiry; that Bail cannot be withheld as a matter of punishment; that the Investigating officer has already opined in favour of Applicant, therefore the case of the Applicant needs further Probe on the plea of two versions; that the case of the Applicant is based on enmity as admitted by the complainant in the aforesaid crime, therefore his false implication in the aforesaid crime cannot be ruled out; that there is a grave apprehension of the Applicant being arrested by the police and there is malafide intention on the part of complainant to rope the Applicant in the present crime as well as police. He further states that NBWs have been issued by the learned trial court, after declining the Bail Application of the Applicant by the learned trial Court vide order dated 11.05.2019. He states that nothing has been recovered from the Applicant during the course of investigation and no specific role has been assigned to him in the investigation to connect the present applicant in the purported crime. He has relied upon copy of CDR report as collected by the I.O. He further relied upon the recommendation of Inspector Ghulam Ali Jumani in the Final investigation report; that the co-accused has been granted post arrest Bail in the same; therefore the Applicant is also entitled for concession of pre-arrest Bail on the basis of Rule of consistency. He lastly prayed for allowing the pre-arrest bail to the Applicant. In support of his contention, learned counsel has relied upon case law reported as Badaruddin v The State (2010 M L D 1052), Dilmurad v The State (2010 SCMR 1178), Nasir Khan v Waseel Gul and another (2011 SCMR 710), Nazeer Hussain and 3 others v The State (2018 Y L R 218), Muhammad Ikram v The State and another (2018 Y L R Note 227) and Ali Murad and others v The State (2019 Y L R Note 21).

4.  On the contrary, Haji Shamsuddin Rajper, learned counsel for the complainant has vehemently opposed the grant of Bail Application to the Applicant on the premise that he has been assigned specific role of direct firing upon deceased Rajab Ali, which hit him and caused fatal injury, therefore, he succumbed to his injuries on the spot. As such he is not entitled for confirmation of interim Pre-arrest Bail.

5.  Mr. Zulifqar Ali Jatoi, Addl.P.G, assisted by learned counsel for the complainant, supported the version of prosecution story and vehemently opposed the grant of interim Pre-arrest Bail to the Applicant. He next argued that there is no malafide on the part of police to falsely implicate the Applicant in the present crime; that the applicant does not meet the basic parameters of grant of pre-arrest Bail as provided under section 498-A Cr.P.C, thus no concession can be given to him at this stage. He lastly prayed for dismissal of the present Application moved by the applicant.

6.  I have heard the parties at length and perused the material available on record and considered their submissions and the case law cited at the bar.

7.  Tentative assessment of the record reflects the following aspect of the case:

i.    FIR was promptly lodged on 13.07.2018

ii.  Medical evidence/postmortem report reveals injuries on the part of     body of the deceased Rajab Ali as alleged by the complainant.

iii. Forensic Examination report of recovered articles supports the prosecution case.

iv. Investigation of the Crime No.114/2018 prima facie connects the accused in the alleged crime as specific role has been assigned to the applicant.

v.  PWs have supported the version of the prosecution.

vi. CDR report supports the prosecution case.

 

8.   As per record, the allegations against the Applicant is that he along with other accused made straight fires upon deceased Rajab Ali, who did not sustain the injuries and died, compelling the complainant to lodge FIR against the Applicant and his accomplices. 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.

9.   An important question arises in the present case, as to whether on the basis of Plea of Alibi; concession of bail can be extended to the Applicant/ accused?

10.  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. On the aforesaid proposition, I am fortified by the decision of Honorable Supreme Court rendered in the case of Shahzad Ahmed Vs. The State. (2010 SCMR 1221)     11.  I am of the tentative view that at the stage of consideration of Bail Application, either Anticipatory or Regular Bail such plea of Alibi could not be taken into consideration. The plea of alibi being a distinct plea is required to be substantiated by adducing cogent and concrete evidence. My view is supported by the decision rendered by the Honourable Supreme Court in the case of Hayatullah Khan V. Muhammad Khan, reported in (SCMR 2011 1354).

11.   Tentative assessment of record reflects that, Applicant is charged with the offence of firing upon the deceased, 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, at this juncture, no case of further enquiry is made out on the aforesaid pleas. Besides that the case of Applicant is hit by prohibition contained in section 497(1) Cr.P.C. thus under the given circumstances no extra ordinary concession of Bail before arrest can be extended to the Applicant at this stage. Apparently, sufficient incriminating material has been collected by the police, which prima facie connect Applicant with the alleged crime of murder of deceased Rajab Ali.

12.   From the perusal of record it appears that the prosecution case clearly spelt out as discussed supra. I have also gone through the investigation of the Crime No. 114/2018 PS-Kotdiji as well as the recommendation of the Inspector Ghulam Ali Jumani, which does not support the case of the Applicant.

13.   I am of the view that grant of pre-arrest bail is an extra ordinary relief which is extended in exceptional circumstances when glaring malafide is shown on the part of prosecution to cause unjustified harassment and humiliation of the Applicant in case of his arrest. I have noted that there is nothing on record which could suggest or indicate false implication of the Applicant in the present case. Besides, Applicant has also failed to point out any malafide or ulterior motive on the part of complainant or Police. Therefore, the Applicant is not entitled to concession of Pre-arrest Bail.

14.    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.

15.  The Applicant has failed to produce any material to suggest that he is falsely implicated in the alleged crime, merely saying that he was not present at the time alleged offence 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 trial proceeds, proper course needs to be adopted in this regard.

16.   The case law cited by the learned counsel for the Applicant is distinguishable from the facts and circumstances of the case in hand.

17.      In view of the above facts and circumstances, I am of the tentative opinion that the Applicant/accused has not made out a case for grant of Pre arrest Bail. Hence, Interim Pre-arrest Bail granted to the Applicant vide order dated 23.05.2019 is hereby recalled and the instant Bail Application is dismissed accordingly.

18.      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 parties preferably within a period of 4 months.

 

                                                                                                JUDGE      

 

 

 

Akbar.