ORDER SHEET
IN THE HIGH COURT OF
SINDH, BENCH AT SUKKUR
Cr. Bail Application No. S – 492 of 2018
DATE ORDER WITH
SIGNATURE OF JUDGE
For
hearing of bail application
1. For
orders on office objection at flag ‘A’
2. For
hearing of bail application
22.10.2018
Mr. Ubedullah K.Ghoto, Advocate for
the Applicant
Syed Sardar Ali
Shah, DPG for the State
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Through instant bail application,
the applicant/accused Gul Hassan Chachar
has sought post-arrest bail in Crime No.06/2006 registered at police station Gemro, District Ghotki for an
offence under Sections 324, 147, 148, 149 and 337-H(ii)
PPC.
2. The facts
as per FIR registered by complainant Dahar Lolai at Police Station Gemro are
that there was murderous dispute in between Chachar
and Lolai community, due to fear they used to keep
their license weapons and started guarding. On the day of incident, he
(complainant) along with Hoat and Nazir
Ahmed were on guarding duty, when at about 0530 hours, all of a sudden from
southern side there came accused Ghulam Qadir alias Qadri, with Martyr
Gun, Manzoor Mirbahar with
Rocket Launcher, Jam Shahmeer with Dachiko, Jam Jaffar, Jam Ghulam Rasool, Mumtaz, Daim, Anwar, Gul Hassan, Akbar, Mithoo, Haji Naseer, Nazeer alias Nizoo, Rasool Bux,
Bakhshan, Deeno, Rabban, Khaqo, Jhangal, Gohar, Sultan, Mehar, Khaliqo, Mehwal, Daim, Misri,
Gosho, Naseer, all armed
with kalashnikovs, Shahban,
Janoo, Babur, Bangul, Wazeer, armed with Rocket Launcher, Islam, Ali Bux, Jagan, Muhammad Nawaz,
Sharif, Lateef, Bashir armed with G-3 rifles and
seven unknown persons, if seen again will be identified having kalashnikov. On
coming they gave challenge and said that today they will avenge the murder of
dacoit Ghulam Nabi Chachar and will kill them (complainant party) and on
saying so, all the accused persons having Automatic weapons started
indiscriminate firing just to create terror, the complainant party also took
shelter and in their self-defence made fires upon the
assailants, the firing continued for about two and half hours and ultimately
the firing stopped from the assailants side. Then they (complainant) saw that Mst. Nazi wife of Andal Lolai aged about 45 years had firearm injury on her head
from back side, Mst. Hasina
wife of Mashir Lolai aged
about 22 years had also sustained firearm injury below the left knee and foot
and Mst. Nazeeran daughter
of Raham Ali aged about 18 years had also received
firearm injuries on her head, left and right arm and legs, blood was oozing.
Thereafter all the injured were shifted to Taluka
Hospital Ghotki for treatment and he (complainant) went
to police station and such FIR was lodged.
3. Learned
counsel submits that the applicant is innocent and he has been falsely
implicated in this case by the complainant due to tribal dispute which is
admitted in the FIR, whereas, as per FIR there is no independent eyewitness of
the incident; that as per FIR no specific overt act has been attributed to the
present applicant in the commission of the alleged offence and only he was
armed with kalashnikov; that the general role of firing is attributed to the
present applicant; that the complainant has nominated a large number of
innocent persons in the FIR due to the tribal dispute which was going on between
the two communities; that the co-accused Wazir has
already been granted post-arrest bail vide order dated 05.11.2008, whereas,
co-accused Sanwan alias Sanwoo
and Mehwal have also been granted pre-arrest bail by
the Court of learned 2nd Additional Sessions Judge Ghotki, hence on the rule of consistency the applicant is
also entitled for the concession of bail; that the complainant is absconder and
is involved in number of cases, therefore, due to non-appearance of complainant
and witnesses the case has been kept in abeyance vide order dated 15.09.2009 by
the Court of learned 3rd Additional Sessions Judge Mirpur Mathelo; that no recovery
has been affected from the possession of the present applicant/accused; that
the applicant/accused was absconder and proceedings under Section 87/88 Cr.P.C have been initiated against him, if the an accused
is entitled for bail on merits mere abscondence would
not come in his way; that the case has been challaned
and the applicant/accused is no more required for further inquiry. He lastly
prayed that the applicant/accused may be granted post-arrest bail. Learned
counsel in support of his contentions has relied upon the case of Muhammad
Daud and another v. The State and
another (2008 SCMR 173) and case of Mitho Pitafi v. The State (2009 SCMR 299).
4. Learned DPG for State conceded for grant of bail to the present
applicant/accused on the ground that the co-accused under similar circumstances
have already been granted post as well as pre-arrest bail.
5. I have
heard the learned counsel for the applicant/accused, learned DPG for the State and have perused the record. Admittedly
as per FIR the allegation against the present applicant is that he was armed
with kalashnikov and as per the version of the complainant he made fires upon
them along with co-accused persons, resultantly three ladies had received
firearm injuries, but no specific overt act has been attributed to the present
applicant/accused in the commission of the offence, hence it is yet to be determined
at the time of trial after recording the evidence of the witnesses whether the
fire made by the present applicant had hit the injured or not, whereas, there
is no recovery of crime weapon from the present applicant/accused. So far as
the abscondence of the applicant/accused is
concerned, I am fortified by the case-law relied upon by learned counsel for
the applicant/accused in the case of Mitho Pitafi v. The State (2009 SCMR
299), wherein the Honourable Supreme Court of Pakistan has been pleased
to hold that “ bail could be granted,
if accused had good case for bail on merits and mere his absconsion
would not come in the way while granting him bail. The case has been challaned and the applicant is no more required for further
inquiry. In view of the above circumstances, the applicant/accused has made out a case for
grant of bail, resultantly the applicant/accused is granted bail subject to his
furnishing a solvent surety in the sum of Rs.100,000/- (One hundred thousand)
with P.R bond in the like amount to the satisfaction
of trial Court. The above observations are tentative in nature and will not
affect the case of either party at the time of trial.
Judge
ARBROHI