ORDER SHEET

IN THE HIGH COURT OF SINDH, BENCH AT SUKKUR

Cr. Bail Application No. S – 121 of 2017

DATE ORDER WITH SIGNATURE OF JUDGE

For hearing of bail application

(Notice issued)

07.09.2018

Mr. Ghulam Shabbir Dayo Advocate for the applicants

Mr. Abdul Rehman Kolachi, DPG for the State

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Through instant bail application, the applicants/accused Feroze alias Wali Muhammad, Ali Khan, Waqar Ali alias Waqar Hussain, Muneer Muhammad and Waseem Hassan have sought pre-arrest bail in Crime No.56/2016 registered at police station Ahmedpur, District Khairpur for an offences under Section 302, 147, 149 PPC.

The facts as per FIR registered by complainant Mujeeb-ur-Rehman at Police Station Ahmedpur are that the one Ali Sher the brother of Ali Nawaz was murdered, hence Ali Nawaz used to issue threats to him for taking revenge of his brother. On 03.09.2016, he along with his sisters Mst. Sania Bano, Rizwana Bano and Aunt Mst. Feroza W/o Muhammad Yousuf and mother Mst. Hameedan after having night meals closed the outer door of his house and slept, electric bulbs were glowing, when all of a sudden there was some noise, as such they woke-up it was 11:30 p.m (night) and saw and identified on electric bulb lights that 06 accused persons namly Ali Nawaz, Feroze alias Wali Muhammad, having Kalashnikovs, Mir Khan with Repeater, Waqar Ali and Waseem Ali with Guns, the accused persons pointed their weapons at them and asked to remain silent, if anybody cried, would be murdered and within their sight accused Ali Nawaz made direct Kalashnikov fire upon his mother Mst. Hameedan with intention of murder, which hit her on the right side of chest upon breast, she raised cries and fell down on the ground. On the firing and cries, the co-villagers came while giving hakals, hence seeing them coming, all the accused persons went away towards their houses. Thereafter, they (complainant party) went over Mst. Hameedan and found that she had sustained fire shot injury on her right side of chest on breast having hold and bleeding and dead, thereafter, he informed the police through cellphone as such SIP/SHO Sohail Ahmed Shar along with his staff arrived there and after completing the formalities the dead body was shifted to Civil Hospital Khairpur for postmortem and on receiving the dead body and after interment, the complainant went to P.S, hence such FIR was lodged.

Learned counsel submits that the applicants are innocent and they have been falsely implicated in this case by the complainant due to admitted enmity, whereas, as per FIR there is no independent eye-witness of the incident except the family of the deceased. He further contends that as per FIR no specific overt act has been attributed to any of the applicants in the commission of the alleged offence and mere presence of the applicants have been shown at the place of incident; the alleged incident has taken place in the odd hours of the night, whereas, the source of identification has been shown on electric bulb light, which is a weak piece of evidence. He lastly contends that at the most the case of the applicants falls under the vicarious liability, which is yet to be proved after recording of evidence before the trial Court whether the applicants had participated in the alleged offence or even facilitated the co-accused Ali Nawaz who has been assigned the role of causing firearm injury to deceased Mst. Hameedan. He further submits that the case is pending trial and applicants are attending the trial Court regularly, hence the applicants are entitled for confirmation of their interim pre-arrest bail. Learned counsel in support of his contentions has relied upon the case of Faraz Akram v. State (1999 S C M R 1360) and case of Shafi Muhammad v. The State (1999 P Cr. L J 890). Learned DPG on the other hand opposed the grant of pre-arrest bail to the applicants/accused.

Learned DPG for State has opposed the grant of pre-arrest bail to the applicants/accused on the ground that the present applicants have participated and facilitated the main accused Ali Nawaz who has been attributed the vital role in the offence and the offence entails capital punishment, therefore, the interim pre-arrest bail granted earlier to the applicants be recalled.

I have heard the learned counsel for the applicant/accused, learned DPG for the State and have perused the record. Admittedly as per FIR the allegation against the present applicants is that they were armed with Repeaters, Guns and Kalashnikov were available at the place of incident, but have caused no harm to anybody, hence their mere presence has been shown at the place of incident, hence their case cannot be equated with the co-accused Ali Nawaz who has made direct fire upon the deceased Mst. Hameedan Khatoon, as a result thereof she died at the spot. The applicability of Sections 147 and 149 PPC would be determined at the trial after recording of evidence. The case has been challaned and the applicants are attending regularly. In view of the above circumstances, the interim pre-arrest bail granted to the applicants on 07.03.2017 is hereby confirmed on same terms and conditions. The applicants/accused are directed to attend the trial Court regularly, if the applicants fail to appear before the trial Court, the trial Court would be at liberty to take action against the applicants and their surety in accordance with law. The above observations are taken in nature and will not affect the case of either party at the time of trial.

Judge

ARBROHI