ORDER SHEET

IN THE HIGH COURT OF SINDH BENCH AT SUKKUR

Cr. Bail Application No. S-374 of 2018.

Date	Order with signature of Judge

Present

Mr. Justice Amjad Ali Sahito.

Applicants: 1. Irshad Ali son of Fateh Ali.

2. Abid Hussain son of Fateh Ali.

Both bycaste Shaikh, R/O village Misri Shaikh, Taluka Sobhodero, District Khairpur.

Mr. Farman Ali Kanasro advocate for applicants.

Complainant: Muhammad Rafique Lashari.

The State: Through Mr. Mir Afzal Hussain Talpur, Deputy Prosecutor General.

Mr. Nazir Ahmed Junejo advocate for complainant.

Date of hearing. 15-10-2018.

Date of decision. 15-10-2018.

O R D E R.

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AMJAD ALI SAHITO, J.- By this Order, I intend to dispose of the instant bail application arising out of Crime No. 24/2018, offence u/s 302, 148, 149 P.P.C registered at PS Sobhodero. This bail application is directed against the order dated 20-06-2018 passed by learned IV-Additional Sessions Judge Khairpur, whereby the Pre-Arrest Bail Application of the applicants/accused was dismissed.

2. Briefly, the facts of the prosecution case are that complainant Muhammad Rafique Lashari lodged the F.I.R. on 01-03-2018 alleging therein that on the day of incident he along with his son Muhammad Maroof, Mehboob Ali and Muhammad Hussain after completing their work at Sobhodero were returning to their village on two motorcycles. When they reached near village Piyalo, where they saw six persons on three motorcycles crossed them and pointed their pistols towards complainant party and signaled them to stop. The complainant party identified the said persons to be Arif, Majid, Saith Ali, Irshad Ali all bycaste Shaikh and two unidentified persons armed with pistols. On the instigation of accused Arif, co-accused Majid made straight fire upon son of complainant, which was missed, then accused Arif made straight fire upon the son of complainant, which hit him and fell down. Accused Irshad also caused butt blow of pistol to the son of complainant and remaining accused made aerial firing. Then all the accused persons went away on their motorcycles towards Gambat. The complainant with the help of other PWs took his injured son towards RHC Sobhodero, where he 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 applicants/accused are innocent and have falsely been implicated in this case; that applicants/accused trailer masters having shops in Sobhodero city and earn their livelihood and they have no concern with this incident; that according to F.I.R. the main role of causing fatal injury is assigned to co-accused Arif and applicant/accused Irshad Hussain has assigned role of causing butt blows, but actually he had no any nexus with offence and during investigation, he has been declared as innocent by the investigation officer while the name of applicant/accused Abid Hussain is not transpired in the F.I.R; that co-accused Sabir Hussain has already been admitted to post arrest bail by learned trail Court vide order dated 05-06-2018 in Cr. Bail Application No. 900/2018 as such applicants/accused also deserve for same treatment on the rule of consistency because their case is on same footing to that of co-accused. A copy of such bail order is annexed with this bail application being annexure-D (Page No. 21 to 25).

4. Learned counsel for the complainant has argued that applicants/accused along with co-accused being armed with pistols came at the place of incident and facilitated to each other and committed the murder of a young son of complainant; that after registration of F.I.R. I/O has recorded 161 CrPC statements of the PWs, who have supported the version of complainant, therefore, they are not entitled for concession of interim pre arrest bail.

5. Learned Deputy Prosecutor General has also supported the arguments advanced by learned counsel for complainant and he has also opposed the confirmation of interim pre arrest bail.

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

7. Record reflects that the name of applicant/accused Abid Hussain does not find place in the F.I.R., but his name was disclosed by the complainant in his second statement before Investigation Officer, which was recorded on 16-03-2018 with the delay of about 15 days of the incident. The role assigned by the complainant against unnamed accused persons in the F.I.R. is only aerial firing. Reverting to the case of applicant/accused Irshad Ali against whom against the role assigned by the complainant in the F.I.R. that he caused butt blow to deceased at his pubic region, but such version of the complainant belied by the medical officer. Since no any specific role or injury has been attributed to the applicants/accused, therefore in such circumstances their vicarious liability as to whether they shared common intention or not can only be decided at stage of trial after recording the evidence. Furthermore, it is matter or record that co-accused Sabir Hussain having similar role has been granted post arrest bail by learned trial Court and case of the present applicants/accused is stood on same footing, therefore, rule of consistency is applicable to the present applicants/accused. The applicants/accused plead malafide on the part of complainant that he has involved entire male family members in this case with ulterior motive, therefore, keeping in view the facts and circumstances of the case prima-facie case against the applicants/accused requires further enquiry as contemplated in subsection (2) of 497 CrPC.

7. In view of above, the applicants/accused have made out their case for further enquiry, therefore, interim pre arrest bail already granted to the applicants/accused vide order dated 26-06-2018 is hereby confirmed on same terms and conditions and the instant pre arrest bail application stands disposed of accordingly.

8. Needless, to mention here, 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