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