IN THE HIGH COURT OF SINDH BENCH AT SUKKUR

Cr. Bail Application No.S-540 of 2016.

 

Date

               Order with signature of Judge

                                   

                                   

Applicants:                         1.Sarfraz Ali Shah son of Nadir Ali Shah.

                                                2.GhulamNabi Shah @ Nabi Shah s/o of Nadir        Ali Shah.

                                                3. Muqeem Shah son of Syed Hashim Ali Shah.

                                                All caste Syed, Resident of village Sadar Ji Bhatyoon, Taluka Kingri, District Khairpur through Syed Murad Ali Shah Advocate.

 

Cr. Bail Application No.S-670 of 2016.

 

Applicant                             Naeem Ali Shah son of Syed Hashim Ali Shah by caste Syed Resident of village Sadar Ji Bhatyoon, Taluka Kingri, District Khairpur through Syed Murad Ali Shah, Advocate.

                                                     

Complainant:                     Through Mr. Manzoor Hussain Ansari Advocate.

 

The State                             Through Mr. Abdul Rehman Kolachi, Deputy Prosecutor General.

 

Date of hearing     :           01-10-2018.

Date of Decision.  :           01-10-2018.

 

O R D E R

 

AMJAD ALI SAHITO, J.-By this common Order, I intend to dispose of the captioned bail applications arising out of crime Non 08/2016, offence u/s 302, 452, 337F(iii), 337A(ii), 337F(i), 337A(i), 337H(2), 114, 148, 148, 149 P.P.C of Police Station Abdul Rehman Unnar. Both the above-mentioned Bail Applications are directed against the order dated 03-08-2016, whereby the same was dismissed by the Court of learned IIIrd Additional Sessions Judge Khairpur. 

2.         Briefly, the facts of the prosecution case are that complainant Shakeel Ashiq Channa lodged the F.I.R. on 22-06-2016 alleging therein that on 21-06-2016 at night time he along with his father Ashiq Ali aged about 57/58 years, relatives Javed Ahmed, Muneer Ahmed, Mehtab Ahmed, Nawab Khan, Naveed Ahmed, Qamaruddin, Naseer Ahmed all by caste Channa and their servant Waheed Soomro were chitchatting in their Otaq. At about 2145 hours they saw and identified accused Zubair Shah, Munawar Ali Shah both with lathis, Nasim Shah with TT pistol, Rashid Ali Shah, Saleem Shah, Naeem Shah, Muqeem Shah, GulFaraza Shah, Nabi Shah, Sarfaraz Shah with iron rods and 05 unidentified accused persons with pistols came there. While coming, accused Munawar Ali Shah abated the remaining to commit the murder of complainant party, on which accused Munawar Ali Shah caused lathi blow to Ashiq Ali Shah behind the back side of his head. Accused Zubair Shah and Nasim Shah caused lathi and butt blows of the pistol to the father of complainant at his back and others parts of the body, who went unconscious. Accused Naeem Shah caused iron rod blow to the complainant at his left side of the head and left cheek.  Accused Rashid Ali Shah caused iron rod blow to Muneer Ahmed Chand at his right shoulder. Accused Nabi Shah caused iron rod blows to Mehtab Ahmed Channa at his both arms, forehead and other parts of the body. Accused Gul Faraz Shah caused iron rod blows to Nawab Khan Channa at the right side of his chest. Accused Muqeem Shah caused iron rod blows to Naveed Ahmed Channa at the right side of his head and both shoulders. Accused Sarfaraz Shah caused iron rod blows to Qamaruddin Channa at the left side of his cheek, face, and teeth. Accused Zubair Shah caused lathi blows to Naseer Ahmed Channa at the left side of his abdomen. Accused Naeem Shah caused iron rod blows to Waheed Soomro at his head and shoulder. The complainant party raised cries, which attracted to co-villagers, then accused made aerial firing and went out from the Otaq while extending threats of dire consequences. The complainant party brought the injured to Civil Hospital Khairpur, where Ashiq Ali Channa father of the complainant succumbed to the injuries. Ultimately complainant lodged the above said F.I.R.

3.         It is, inter-alia, contended by the learned counsel for the applicants/accused that they are innocent and have falsely been implicated in this case due to enmity, which is admitted by the complainant in the FIR; that there is an inordinate delay of about one day in lodging the F.I.R; that all the witnesses are closely related to the complainant and no any independent witnesses have been sighted by the complainant;  that the medical evidence is in conflict with ocular account of evidence; that mostly the applicants/accused belong to one and same family and complainant has falsely dragged them due his personal grudge; that case has been challaned and applicants/accused are no more required for further investigation, therefore, their case requires further investigation and they are entitled to concession of bail.

4.         On the other, learned counsel for complainant has argued that applicants/accused are nominated in the F.I.R with specific role as they along with co-accused duly armed with deadly weapons with their common object came at the place Otaq of complainant and committed the murder his father so also caused injuries to PWs; that F.I.R. has been promptly lodged by the complainant and as far as delay of one day is concerned, the complainant has fully explained such delay in the F.I.R. that after funeral ceremony of his father and treatment of injured, he appeared at police station and lodged the FIR; that the PWs in their statements recorded in terms of section 161 Cr.PC have fully implicated the applicants with the commission of offence; that there is no mala fide on the part of the complainant or Investigating Officer, therefore, he opposed for the grant of pre-arrest bail to the applicants/accused.

5.         Learned Deputy Prosecutor General has also supported the arguments of learned counsel for the complainant and seeks dismissal of both the bail applications.

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. Perusal of record shows that applicants/accused along with co-accused duly armed with deadly weapons, in furtherance of their common object, came at Otaq of complainant, committed the murder of Ashiq Ali Channo, father of complainant so also caused injuries to the complainant. Accused Sarfaraz Shah caused iron rod blows to Qamaruddin Channa at the left side of his cheek, face, and teeth. Accused Nabi Shah caused iron rod blows to Mehtab Ahmed Channa at his both arms, forehead and other parts of the body. Accused Muqeem Shah caused iron rod blows to Naveed Ahmed Channa at the right side of his head and both shoulders. Applicant Naeem Shah caused iron rod blow to the complainant at his left side of the head and left cheek. It is settled principle of law that at bail stage only tentative assessment is to be made. A perusal of record shows that names of applicants/accused transpired in the FIR with a specific role and serious allegations of committing murder of one Ashique Ali so also causing injuries to injured persons, named above, which shows the presence of the applicants at the place of occurrence.

7.         Furthermore, it is settled proposition of law that concession of pre-arrest bail is always extended in the case of mala fide and ulterior motives on the part of complainant/prosecution to save innocent people from their unjustified arrest and humiliation at the hands of police, but learned counsels for applicants have failed to bring on record any material to believe that they have been falsely involved due to malice or ulterior motives of the complainant or they had not committed the alleged offence. Reliance is placed upon the case of Riaz Ahmed v. The State (2009 SCMR 725).

8.         So far plea raised by learned counsel for the applicants that there is a conflict between medical evidence and ocular account, for which it suffices to say that at bail stage this plea cannot be considered without a deeper appraisal of evidence. Reliance is placed upon the case of Mumtaz v. The State (2012 SCMR 556), wherein Hon’ble Supreme court of Pakistan has held that:

“3…….the conflict between medical evidence and the ocular account cannot be appreciated without a deeper appraisal of evidence which is not warranted at bail stage”.

 

9.         Considering the above facts and circumstances, applicants/accused have failed to make out their case for grant of bail. The alleged offence falls within the ambit of prohibitory clause of section 497 Cr.PC. Prima facie, ample evidence/material is available on record to connect the present applicants with the commission of the alleged offence. Hence, I do not find a fit case for grant of bail to the applicants and resultantly, instant Bail Application No.S- 540 of 2016, filed by applicants Sarfraz Ali Shah, Ghulam Nabi Shah, and Muqeem Shah and Crl. Bail  Application No. S-670 of 2016, filed by applicant Naeem Shah seeking pre-arrest bail stand dismissed and earlier orders granting interim pre-arrest bail to applicants are hereby recalled.

10.      Needless to mention here that observations made hereinabove are tentative in nature and would not prejudice the case of either party at trial.

                                                                                                                        JUDGE

                                                                                   

 

                                                                                   

 

Nasim/P.A