ORDER SHEET

 

IN THE HIGH COURT OF SINDH BENCH AT SUKKUR

Cr. Bail Application No. S-652 of 2017.

 

Date

               Order with signature of Judge

                                   

                                                Present

                                                Mr. Justice Amjad Ali Sahito.

 

Applicant:                           Asghar son of Muhammad Saleh bycaste Khaskheli, Resident of village Sache Dino Khaskheli, Taluka Faiz Gang, District Khairpur.

                                                Mr. Syed Jaffar Ali Shah advocate for applicant.

 

Cr. Bail Application No. S-662 of 2017. 

 

Applicants:                         1. Ali Gul son of Muhammad Mooas.

                                                2. Muhammad Auchar son of Baloch Khan.

                                                Both bycaste Khaskheli, Resident of village Sache Dino Khaskheli, Taluka Faiz Ganj, District Khairpur.

                                                     

                                                      Mr. Syed Jaffar Ali Shah advocate for applicants.

 

Respondent.                       The State.

 

                                                Mr. Ali Bahar Chang advocate for complainant.

                                                Mr. Syed Sardar Ali Shah Rizvi, Deputy Prosecutor General.

 

Date of hearing.    10-09-2018.

 

O R D E R.

 

.-.-.-.-.-.-.-.-.-.-.-.-.

AMJAD ALI SAHITO, J.- By this single Order, I intend to dispose of the captioned bail applications arising out of one and same crime. Bail Application No.S-652/2017 is directed against the order dated 17-10-2017 passed by learned IInd Additional Sessions Judge Khairpur, whereby the Pre-Arrest Bail Application of the applicant/accused Asghar Khaskheli was dismissed. The Bail Application No.S-662/2017 is directed against the order dated 17-10-2017 whereby the Pre-Arrest Bail Application of applicants/accused Ali Gul Khaskheli and Muhammad Auchar was dismissed by the same Court. 

2.         Briefly, the facts of the prosecution case are that complainant Wazir Ali lodged the F.I.R. on 02-10-2017 alleging therein that on 28-09-2017 he along with his brother Kashif, relatives Gullan and Allah Wassayo were sitting at home, where at about 1-00 pm accused Ali Gul with rope, Muhammad Achar, Asghar with pistols, Nehal empty hand all bycaste Khaskheli along with two unidentified accused with hatchets came and controlled upon the complainant party. Meanwhile accused Nehal Khan instigated other accused to commit the murder of Kashif, then accused Ali Gul put the rope on the neck of Kashif, accused Muhammad Achar put from his arms and accused put from his legs and laid down the Kashif on the ground and then accused Ali Gul strangulated Kashif with rope and within the sight of complainant, his brother Kashif died. Then all the accused persons hanged that Kashif with Latan and went away. Ultimately complainant appeared at PS and lodged the above said F.I.R.

3.         It is, inter-alia, contended by the learned counsel for the applicants/accused that applicants/accused are innocent and have falsely been implicated in this case due to dispute over the matrimonial affairs, which is admitted by the complainant in the FIR; that there is inordinate delay of about 04 days in lodging the F.I.R. and such delay has not been explained by the complainant; that on the information of complainant, the police kept entry No. 15 in roznamcha register on 28-09-2017, which reveals that complainant has not disclosed the names of accused to the police; during the investigation accused Ali Gul has been declared innocent; that rope or cloth with which the alleged murder of deceased Kashif has been committed, have not been recovered by the investigation officer. He lastly contended that case of applicants/accused requires further enquiry and they are entitled for concession of bail.  He relied upon case law reported in 2017 SCMR 538 AWAL Khan and 7 others versus The STATE through AG, KPK and another and 2007 P.Cr.L.J 1274 Lahore NAZAR HUSSAIN Shah and another versus THE STATE.

4.                     On the other, learned counsel for complainant has argued that applicants/accused are nominated in the F.I.R with specific role; that delay in lodging the F.I.R. has been properly explained by the complainant as he was remained busy in funeral ceremony of his brother; I.O has recorded 161 CrPC statements of PWs, who have fully supported the version of complainant. Lastly he prayed for dismissal of instant bail applications. He placed his reliance on case reported in 2018 YLR 376 Sindh (Larkana Bench) Abdul BARI versus The STATE and 2017 P.Cr.L.J Note 185 Ghulam MUSTAFA SOOMOR versus The STATE.

5.                     Learned Deputy Prosecutor General has conceded the bail plea of the applicants/accused on the ground that as per F.I.R. when the death of the deceased was occurred due to strangulation, then why the accused persons have hanged the deceased. He further pointed out that the shirt of the deceased recovered by the police is stained with blood, but such fact of blood has neither been disclosed by the complainant in the F.I.R. nor PWs in their statements u/s 161 Cr.P.C.

6.                     I have considered the submissions of the learned counsels for the applicants/accused, learned counsel for the complainant, learned APG for the State and have gone through the material available on the record with their assistance.

7.                     Perusal of record shows that there is inordinate delay of about 04 days in lodging the F.I.R., although the police station was situated at the distance of 6/7 kilometers away from the place of incident, inspite of that complainant has not lodged the F.I.R. promptly, therefore, complainant has not properly explained the delay in lodging the F.I.R.  Record reveals that on the day of incident, the police kept entry No. 15 in roznamcha register on 28-09-2017 as per information of complainant, which reveals that complainant has not disclosed the names of accused to the police. It has further come on record that during the investigation accused Ali Gul has been declared innocent and the rope or cloth with which the alleged murder of deceased Kashif has been committed by the accused persons, have not been recovered by the investigation officer.  The medical officer RHS Faiz Ganj in post mortem report of deceased disclosed that the death is occurred due to Asphyxia. Asphyxia is due to hanging. As per mashirnama of recovery of shirt of deceased, by the police has recorded the shirt, which is stained with blood, but such fact of blood stained shirt has neither been disclosed by the complainant in the F.I.R. nor PWs in their statements u/s 161 Cr.P.C. These all things make the case of applicants/accused for further enquiry and they are also entitled for concession of same relief.

8.                     In view of above, the interim pre arrest bail already granted to the applicants/accused is confirmed on same terms and conditions and the above instant pre arrest bail applications stand disposed of accordingly.

9.                     Needless, to mention that the observations made herein above are tentative in nature and would not prejudice the case of either party at trial.

                                                                                                                        Judge

                                                                                   

 

Nasim/P.A