ORDER SHEET

IN THE HIGH COURT OF SINDH BENCH AT SUKKUR

Cr. Bail Application No. S-129 of 2018.

Date	Order with signature of Judge

Present

Mr. Justice Amjad Ali Sahito.

Applicant: Esso son of Shahoo bycaste Shar,

Resident of village Haji Qabil Shar,

Taluka Ubauro, District Ghotki.

Mr. Ubedullah Ghoto advocate for applicant.

Respondent. The State.

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

Date of hearing. 10-09-2018.

O R D E R.

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AMJAD ALI SAHITO, J.- By this Order, I intend to dispose off instant bail application filed on behalf of applicant/accused Esso Shar in crime No. 06/2001, offence u/s 302, 148, 149 P.P.C registered at police station Wasti Jeewan Shah, District Ghotki. Prior to this, applicant/accused has moved bail application u/s 497 Cr.P.C before the learned trial Court, but the same was declined by learned 1st Additional Sessions Judge Ghotki vide order dated 05-08-2017 and the said order has been assailed before this Court.

2. Briefly, the facts of the prosecution case as disclosed in the F.I.R. are that on 10-02-2001 complainant Mst. Balan Shar lodged the F.I.R. alleging therein that one Laloo alias Laln aged about 45 years was brother of her husband. On 09-02-2001 complainant along with Laloo alias Lalan, cousin Nazeer and Ranjho son of Siddique Shar had gone to attend the marriage ceremony of Shahpar Shar at his house, where Adam Shar and others had not come. Laloo alias Lalan Shar enquired from Raees Allah Warayo alias Papu Shar that whey Adam Shar and others have not come in the marriage ceremony to which Raees Allah Warayo alias Papu Shar replied that they are angered with them and asked him to get compromise with them, hence complainant, Laloo alias Lalan, Nazeer and Ranjho went to the house of Adam Shar. At about 11-00 am when they reached near the Otaq of Chango Shar, where Adam, Mehboob and Goro all sons of Mataro Shar armed with Kalashnikovs, Nale Chango, with rifle met with them. Meanwhile Esso Shar armed with Kalashnikov, Raees Allah Warayo alias Papu Shar, Khairo alias Khair Muhammad Shar all sons of Shahoo Shar armed with rifles. Laloo alias Lalan Shar asked Adam Shar and others that why they have not come in the marriage, on which all the above named accused persons asked Laloo alias Lalan Shar that who is he to make compromise with them and he is loafer type of person. Saying so, accused Adam Shar, Mehboob Shar, Goro Shar and Esso Shar with intention to commit murder directly fired upon Laloo alias Lalan Shar, who fell down and remaining accused persons also challenged the complainant party not to come near and then all the accused persons escaped away. Then complainant party saw that Laloo alias Lalan Shar sustained firearm injuries at his left side of chest, right side of shoulder and mouth, he was bleeding and died at the spot. Complainant party then brought the dead body to village Hussain Shar, where complainant sent the above PWs to Nekmard Haji Khan Shar at his village Geelpur and they stayed there at night. At morning they met with Nekmard Haji Khan Shar, who asked the complainant to lodge the F.I.R. Ultimately complainant lodged the above said F.I.R.

3. It is, inter-alia, contended by the learned counsel for the applicant/accused that applicant/accused is innocent and has falsely been implicated in this case; that there is inordinate delay of about 28 hours in lodging the F.I.R. and such delay has not been explained by the complainant; that empties of Kalashnikov have not been recovered by the investigation officer from the place of incident and the injuries on the person of deceased do not commensurate with the number of fires or number of accused having fired upon the deceased; Lastly he prayed that it is fit case for further enquiry, therefore, the applicant/accused entitled for concession of bail. He has relied upon case law reported in 2017 SCMR 538 Awal Khan & 07 others Vs The State, 1980 SCMR 784 JAFFAR AND OTHERS Vs The State, 2012 MLD 695 Sindh Ghulam NABI alias PAPU versus THE STATE, 1990 SCMR 1050 AURANGZEB and 4 others versus THE STATE, 2010 YLR 2050 Lahore, IBRAR HUSSAIN versus THE STATE, SBLR 2010 SC 275 Dilmurad versus The State and 2005 MLD 1267 Karachi NOORDIN and another Versus THE STATE.

4. On the other, learned DPG for the State with the assistant of learned counsel for the complainant has contended that delay has properly been explained by the complainant in the FIR; that the present applicant/accused is nominated in the F.I.R with specific role of causing straight fire shot upon the deceased; that applicant/accused was arrested on 01-06-2017 and he has remained absconder for long period of about 17 year and he was arrested in another case; that out of 07 nominated accused persons, 05 accused persons are still absconders; Lastly he prayed for dismissal of instant bail application.

5. I have considered the submissions of the learned counsels for the applicant/accused, learned counsel for the complainant as well as learned DPG for the State and have gone through the material available on the record with their assistance.

6. Perusal of record shows that applicant/accused is nominated in the F.I.R. with specific role of causing firearm injuries upon the deceased Laloo alias Lalan and such version of the complainant has also been supported by the PWs in their 161 Cr.P.C statement. According to post mortem report, the deceased had sustained four injuries and all the four injuries are sufficient to cause death in ordinary course of nature. Moreover, applicant/accused remained absconder for long period of about 17 years and he was arrested in another other case and then his arrest was shown in this case. The delay in lodging the F.I.R. has plausibly explained by the complainant in the contents of F.I.R. It is well settled principle of law that at the bail stage only tentative assessment is to be made. It seems that the applicant/accused Esso Shar is involved in the heinous offence and his case scarily flaws within the prohibitory clause of section 497 CrPC.

7. In view of the above, the instant bail application is dismissed accordingly.

8. 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