IN THE HIGH COURT OF SINDH, BENCH AT SUKKUR

Crl. Bail Appln. No. S – 133 of 2018

 

Applicant:                  Talib Hussain Gabole, through

M/s Qurban Ali Malano and Allah Bux Gabole, Advocate

 

Complainant:            Illahi Bux Gabole, through

Mr. Achar Khan Gabole, Advocate

 

Respondent:             The State, through

Mr. Abdul Rehman Kolachi, Deputy Prosecutor General

 

Date of hearing:       05.11.2018

Date of order:            05.11.2018

 

O R D E R

 

AMJAD ALI SAHITO, J-     Through this application, the applicant/accused Talib Hussain, has sought pre-arrest bail in Crime No.84/2013 registered at Police Station, Khanpur Mahar, District Ghotki for offences punishable under Sections 302,                  337-H(ii), 148 and 149 PPC, whereas, the bail plea of the applicant/accused was declined by the Court of learned 3rd Additional Sessions Judge Ghotki vide order dated 11.11.2013.

2.         The facts as per FIR registered on 23.09.2013 by one Illahi Bux Gabole are that in the year 2010 there had taken place some murders of Baig Muhammad Mahar as such they had suspected upon the complainant party that they are involved in such murders, whereas, the son of Abdul Razak Gabole was also murdered, with whom he has also enmity, who also used to remain annoyed. On 22.09.2013, he (complainant) along with his brother Mehar aged about 47/48 years, another brother Raman and cousin Muhammad Siddiq had gone to Khanpur Mahar town in connection with some work, it was 2:15 p.m, all of a sudden there appeared accused Ghulam, Akber alias Akloo, Baig, Madad, Munir, Suhno, having pistols, Talib (present applicant/accused with pistol, Abdul Razak, empty handed. Out of them, accused Abdul Razak Gabole instigated his companions and said that they are our enemies to kill them, whereas, the other accused persons also said that they are our enemies. On saying so, accused Ghulam Mahar made direct pistol shot upon my brother Mehar, which hit on his left side, who raised cries; accused Talib Gabole made direct pistol shot upon Allah Bux, which hit on his left side chest, who also fell down on the ground. They entreated the accused persons in the name of Almighty Allah and Holy Messenger, thereafter all the accused persons while making aerial firing escaped towards southern side. Then he (complainant) saw that his brother Mehar and cousin Allah Bux were died and after post mortem and interment, he went to police station and lodged the FIR as stated above.

 

3.         Learned counsel for the applicant/accused contended that the applicant is innocent and has falsely been implicated in this case due to enmity which is admitted in the FIR; that during investigation the applicant/accused was found innocent, therefore, the I.O has placed his name in column No.2; that the enmity existed in between the parties hence the false implication of the present applicant/accused cannot be ruled out; that the complainant party has committed the murder of the brother of the  applicant/accused and due to that enmity this false FIR has been registered; that on the same date three FIRs were registered regarding the same incident and the applicant/accused has been falsely implicated by assigning him  role of making fires upon one of the deceased Allah Bux, whereas, the applicant/accused has no nexus with the present offence; that such news was also published in different Newspapers regarding the incident; that there is dispute between two tribes i.e. Mahar and Gabole community, therefore, due to such tribal dispute the present applicant/accused has been implicated in this case; that in another case the                   co-accused have been acquitted by the learned trial Court. He lastly prayed for confirmation of the interim pre-arrest bail earlier granted to the applicant/accused dated 05.03.2018. In support of his contentions, he has relied upon the cases of Muhammad Ilyas vs. Ijaz Ahmad Butt and another (1992 SCMR 1857); Safdar Ali vs. Zafar Iqbal and others (2002 SCMR 63); Malik Waheed alias Abdul Hameed vs. The State and another (2011 SCMR 1945); Muhammad Haneef vs. The State (2010 P Cr. LJ 390) and Punhoon Jaffery vs. The State (2011 Y L R 2803).  

4.         Learned counsel for the complainant mainly contended that on the day of incident a group of accused persons had attacked upon the villagers as such three different FIRs were registered; that though the I.O has declared the present applicant/accused as innocent and placed his name in column No.2, but the learned Magistrate did not agree and took cognizance against the applicant/accused which order was not challenged by the applicant/accused before any forum; that the ocular evidence is fully supported by the medical evidence; that no other co-accused persons have been acquitted by the trial Court nor such order or judgment has been placed on record by the learned counsel for the applicant/accused to believe that in any of the crime Nos. 84, 85 and 86 of 2013 any accused has been acquitted; that the applicant/accused is involved in an offence which entails capital punishment, but he is enjoying the extra-ordinary concession of pre-arrest bail, though he is not entitled for such concession. He has lastly prayed for dismissal of the instant bail application and recalling the interim pre-arrest bail grant order of this Court. In support of his contentions, he has relied upon the cases of Muhammad Faiz alias Bhoora vs. The State and another (2015 SCMR 655); Muhammad Aslam vs. The State and others (PLD 2015 Supreme Court 41); Ghulam Qamber Shah vs. Mukhtiar Hussain and others (PLD 2015 Supreme Court 66); Mohsin Ali vs. The State and others (2016 SCMR 1529); Muhammad Aslam and others vs. The State and others (2016 SCMR 2094); Sohail Waqar alias Sohaila vs. The State and others (2017 SCMR 325) and Imtiaz vs. The State (SBLR 2013 Sindh 245).

5.         Learned DPG for the State submitted that the police has secured the empties from the place of occurrence and further he supported the contentions of learned counsel for the complainant and also objected for confirmation of the interim                   pre-arrest bail granted to the applicant/accused.

6.         I have heard the learned counsel for the parties, learned DPG for the State and have gone through the record. It is an admitted fact that the name of the present applicant/accused has transpired in the FIR with specific role of making direct pistol shot upon deceased Allah Bux, resultantly who died on the spot. Furthermore, this is double murder case in which two persons namely Mehar and Allah Bux have lost their lives. The P.Ws in their 161 Cr.P.C statements have fully supported the version of the complainant which has also substantiated the ocular evidence. No mala fide on the part of the complainant have been proved by the learned counsel for falsely implicating the applicant/accused in the commission of the offence, whereas, at bail stage only tentative assessment can be made, as such learned counsel for the applicant/accused has failed to make out a case for further inquiry. Although the name of the applicant/accused was placed in column No.2 of the challan-sheet being innocent, but the learned Magistrate did not agree with such opinion of the Investigation Officer and that order has not been challenged by the applicant/accused at any forum. As far as the contention of the learned counsel for the applicant/accused that co-accused have been acquitted in other crimes, but no such document or proof has been placed on record to believe such version. In view of above, the interim pre-arrest bail granted to the applicant/accused dated 05.03.2018 is hereby recalled and the bail application is dismissed.

7.         The observations made above are tentative in nature and will not affect the case of either party at the trial.

 

Judge

 

 

ARBROHI