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