ORDER SHEET

IN THE HIGH COURT OF SINDH BENCH AT SUKKUR

Cr. Bail Application No. S-134 of 2017.

Date	Order with signature of Judge

Applicant: Riaz Ali son of Mehar by caste Lakho, R/O village Ghulam Muhammad lakho, Taluka Bhiria, District Naushehro Feroze.

Mr. Illahi Bux Jamali advocate for applicant.

Respondent. The State.

Mr. Abdul Rehman Kolachi, Deputy Prosecutor General.

Mr. Amanullah G.Malik advocate for complainant.

Date of hearing. 29-10-2018.

Date of decision. 29-10-2018.

O R D E R.

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AMJAD ALI SAHITO, J.- Through the instant bail application, applicant/accused Riaz Ali seeks pre-arrest bail in Crime No. 250 of 2015 for the offences punishable u/s 302, 120-B P.P.C registered with police station Naushehro Feroze. Prior to this, his pre-arrest bail application was declined by learned I-Additional Sessions Judge Naushehro Feroze vide order dated 01-04-2016, hence the applicant/accused has filed the instant bail application.

2. Briefly, the facts of the prosecution case are that complainant Saddam Hussain Khoso lodged the F.I.R. on 05-11-2015 alleging there that the dispute over the landed property arose with Iqbal Khoso and others in which Fida Hussain the brother of Iqbal Khoso was murdered and such case being F.I.R. No. 193/2014, for offence u/s 302, 364, 395 P.P.C was registered with police station Daras against the father of complainant namely Auchar and others and in that case his father was confined at District jail Naushehro Feroze. The complainant came to know that Iqbal Khoso, Ali Sher Khoso, Misri Tota inclusion with Jail authorities have beaten the father of complainant and planned to commit his murder, hence the complainant moved such application to Additional Sessions Judge Moro, who passed order and directed jail Superintendent Agha Aftab Ahmed Pathan for better treatment of the father of complainant from Nawabshah, but he avoided. On 12-06-2014 the complainant along with his relative Izzat Ali Khoso came to the office of Jail Superintendent Naushehro Feroze and found accused Iqbal Hussain, Ali Sher @ Fatani, Mushtaq, Misri Khan Tota were sitting and jail superintendent Agha Aftab Ahmed Pathan, Deputy jail superintendent Faheem Ahmed Memon, Barrack in charge Dilawar Jatoi were available there. On seeing the complainant, accused Iqbal asked him that the death days of his father have come and they have planned to commit the murder of his father in collusion with jail authorities. On 12-06-2014 complainant along with Izzat Khoso went to Jail Superintendent and asked him to get medical treatment to his father, but he avoided to do so. Meanwhile, four accused person came, their jail superintendent called Deputy Jailer Faheem Memon and Barrack in charge Dilawar and asked them to bring Auchar Khoso the father of complainant in his office. They brought the father of the complainant, where accused Iqbal gave him fists and kicks blows, who went unconscious. On 15-06-2015 at about 1-00 am complainant received a telephonic message in his house that his father is admitted in Civil Hospital Naushehro Feroze, hence he along with relative Izzat Khoso and grandfather Mirzo Khan reached the Hospital, where they were informed by the doctors that his father has been expired. After completing the formalities, the dead body was handed over to the complainant. Thereafter complainant filed such application for registration of F.I.R. and on 31-10-2015 learned Additional Sessions Judge Moro passed an order for registration of F.I.R. After getting an order from the court, complainant appeared at PS and 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 by the complainant; that no role has been assigned by the complainant against the present applicant and only complainant alleged that he came to know that applicant/accused is involved in this case; that I/O has let off the applicant/accused and disposed off the case under "C" class, but learned Magistrate did not agree with such report of I/O and took the cognizance; that delinquent inquiry was conducted in which the applicant/accused was declared as innocent and said inquiry has been produced at annexure-B at page No. 41 to 45; that applicant is doctor and complainant with malafide intention and ulterior motive given his name in the FIR and if the bail application of the applicant/accused is not confirmed the applicant/accused will lose his job and will be disgraced and humiliated in general public. He lastly prayed that it is a fit case for further enquiry and interim pre-arrest bail already granted to the applicant/accused may be confirmed.

4. On the other hand, learned DPG for the State has conceded the bail plea of the applicant/accused on the ground that I/O has not collected any material to connect the present applicant/accused for commission of the offence. He further submitted that the role of conspiracy is assigned to the applicant/accused by the complainant, the same is yet to be determined at the time of trial.

5. I have considered the submissions of the learned counsel for the applicant/accused, learned DPG for the State and have gone through the material available on the record.

6. It is an admitted position that no medical certificate has been produced by the prosecution to believe that the death of the deceased is result of kicks and fix blows, whereas, in the bottom of F.I.R, the complainant has disclosed the name of present applicant/accused, but he has not assigned any specific role to the applicant in the offence and only general allegation has been leveled against him. The question of vicarious liability and sharing of common object in the incident cannot be decided at bail stage which always require evidence. The prosecution witnesses while making their statements in terms of section 161 Cr.PC have also narrated the same facts as disclosed by the complainant in the FIR. Furthermore, if any conspiracy is made, nothing has been brought on record that when and where the accused gathered and made conspiracy for committing the murder of the deceased. The case has been disposed of under "C" class, but the Magistrate has taken the cognizance of the case and it is yet to be determined by trial Court after recording the evidence about the guilt of applicant/accused. The inquiry was conducted by D.G Health in which the applicant/accused has been exonerated from the charge about his negligence. It is settled principle of law that only tentative assessment is to be made at bail stage. The applicant/accused pleaded mala fide on the part of the complainant that he has falsely been implicated in this case. The challan was submitted before the competent Court of law u/s 322 P.P.C for which punishment is provided only Diyat. Learned counsel for the applicant/accused has able to make out the case of the applicant/accused for further enquiry as contemplated in sub-section(2) of section 497 Cr P C. The applicant is regularly attending the trial Court and has not misused the concession of interim pre-arrest bail.

8. In view of the above, the interim pre-arrest bail already granted to the applicant/accused is confirmed on same terms and conditions. The applicant/accused is directed to join the trial Court and trial Court is at liberty that if the applicant/accused misused the concession of bail, legal action may be taken against him and against his surety.

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

Judge

Nasim/P.A