IN THE HIGH COURT OF SINDH BENCH AT SUKKUR

 

 

Crl. Bail Application No.S-484 of 2019.

Crl. Bail Application No.S-566 of 2019.

Crl. Bail Application No.S-584 of 2019.

Crl. Bail Application No.S-720 of 2019.

    

DATE OF

HEARING

 

ORDER WITH SIGNATURE OF JUDGE

 

For the hearing of bail application.

 

 

 

 

Date of hearing              20.01.2020.

 

 

Mr. Zameer Ahmed Memon Advocate for applicants in Crl. B.A. No.S-484/2019.

 

Mr. Ali Akber Shar, Advocate for applicants in Crl.B.A. No.566 & 584/2019.

 

Mr. Mashooque Ali Ghanghro, Advocate for the applicant in Crl. B.A. No.S-720 of 2019.

 

Mr. Naeemuddin Z. Qasmi, Advocate for complainant

 

Mr. Khalil Ahmed Maitlo DPG for the state.

                   ***************

 

                                       O R D E R

 

ZULFIQAR ALI SANGI, J;                  Through this common order all the above bail applications are being decided which arising from same and one FIR, in bail application No: S-484 of 2019, applicants Arbab Ali, Deedar Ali,  Abdul Khalique, Azam, Mohammad Ibrahim, Hakim Ali, Ghulam Hyder, Mujahid, Inayat Ali, Taqi Mohammad, Shafi Mohammad, Ali Raza, Mohammad Saleem, Khurshed, Abdul Majeed alias Manzoor, Mohammad Ali, Mohammad Ramzan, Maqbool, Waseem and Aftab and in bail application No: S-584 of 2019, Applicants Wakeel and Sikandar Ali seek pre-arrest bail, Applicant Ayaz Ali Mojai in bail application No: 720 of 2019 and applicants namely Mehtab Ali and Imtiaz Ali in Bail application No: S-566 of 2019 seeks their post-arrest bail in Crime No.72/2019 registered at Police Station, Setharja District, Khairpur for offence under Sections  447, 337A(i), 337F(i), 337H(2), 114, 147, 148, 148 PPC and thereafter section 302 was added after the death of one injured Azahar. Earlier their bail applications were declined by learned Additional Sessions Judge, Thari Mirwah vide order dated 30.08.2019, 23-10-2019 and 18-11-2019.

 

2.                The facts in brief necessary for disposal of instant bail applications are that on 15.08.2019 at 1900 hours complainant Rashid Ali lodged FIR at Police Station, Setharja stating that land of complainant and his relative Ali Nawaz Mojai is situated in deh Chutto Wandiar bearing S.No.654,655 ad-measuring 15 acres and 13 Ghunta and the said land was purchased from Mohammad Soomar, Shafi Mohammad and Ghulam Shabir Mojai on which Arbab Ali and Khalique Dino were annoyed and they time and again asked complainant that it is not good for him. It is stated that said Arbab Ali filed a civil suit before Senior Civil Judge, Mirwah through his mother Mst. Shana and on 14.08.2019 complainant received information that Arbab Ali had forcibly occupied the land and construct hut over there. On receiving such information complainant along with his relative Noor Mohammad and Imtiaz Ali went to their land and saw Arbab Ali occupied the land was constructing hut over there, complainant restrained him to vacate the land and not to construct hut but he did not pay any heed. At about 0530 hours accused Arbab Ali with Pistol, Deedar, Khalique Dino, Azam, Mohammad Ibrahim all three armed with lathis, Hakim Ali, Ghulam Hyder, Mujahid, Imtiaz Ali, Inayat Ali, Wakeel, Sikandar, Shakeel Ahmed, Suhail Ahmed, Taqi Mohammad, Shafi Mohammad, Safeer, Ali Raza, Mohammad Saleem, Ayaz Ahmed, Khursheed Ahmed armed with hatchet, Manzoor, Mohammad Ali, Mehtab Ali, Mohammad Ramzan, Maqbool, Waseem, and Aftab all armed with lathis came there and on coming they gave hakals to complainant party why they come at the land. The accused Mohammad Ibrahim and Hakim Ali instigated other accused not to spare complainant party on their instigation co-accused caused lathi blows to complainant and they raised cries, on their cries Khadim Hussain, Azhar Ali, Hakim Ali, Rabnawaz, Toufique Ali, Shahnawaz, Illahi Bux, Gul Munir, Mohammad Achar, Dr. Safia, and Mst. Hafeeza Khatoon came running at the place of the incident. The accused Shakeel and Suhail caused lathi blows upon Mst. Safia on her hand and head while accused Manzoor caused lathi blows upon Mst. Hafeeza on his legs and they also caused lathi and hatchet blows upon them. The accused Arbab Ali made aerial firing upon them intending to create harassment. The complainant party gave them the oath of the Holy Quran to them and then they left the complainant party and illegally occupied the land. The complainant brought injured at Police Station obtained letter for medical treatment and after getting treatment from Taluka Hospital Thari Mirwah appeared at the Police Station where he lodged FIR.

 

3.                Learned Counsel for applicants contends that the applicants have falsely been involved in this case by the complainant with ulterior motives; that the main allegations are against co-accused Shakeel and Suhail for causing injuries to the deceased who have not filed bail application; that the names of injured persons are not mentioned in the FIR; that further statement of complainant was recorded on 17-8-2019 in which he disclosed the names of witnesses; all the injuries are bailable; general role has been assigned to the applicants; that applicant party also wants to register counter FIR but police not registered the same; that applicant party also filed application under section 22-A, B Cr.P.C which was dismissed; lastly all the counsel for applicants in all above bail applications prays for grant of bail.

4.                Learned Deputy Prosecutor General appearing for the State assisted by learned counsel for complainant contended that promptly FIR was registered; that 09 innocent person received injuries in the incident; that all injured were mercilessly beaten by the accused person to which one young boy of 15 years namely Azhar lost his life; that oral account is supported by medical; that applicants committed heinous offence of murder and causing injuries to 09 persons; however learned DPG conceded the fact that all injuries on the person of all injured were declared by doctor punishable up to 05 years. Lastly, they pray that the bail applications of applicants may be dismissed.

 

5.                Heard arguments of learned Counsel for the parties and perused the record with their able assistance.

 

6.       The role against the applicants Hakim and Muhammad Ibrahim is of instigation, Shakeel and Suhail (not filed bail application) caused lathi bellows to Azhar (Deceased), Deedar and Khalikdino caused lathi bellows to Khadim Hussain, Khursheed caused lathi below to Safia, Manzoor caused Lathi below to Hafeeza Khatoon, and against all the accused role is of general nature that they all caused hatchet and lathi bellows to complainant and other witnesses.

 

7.       Final medical certificates issued by the doctor available with DPG in the police papers showed that all the injured received injuries that are bailable and some are not bailable but the same does not fall within the prohibitory clause of section 497 (1) Cr.P.C. The injuries received by the injured witnesses declared by the doctor are as under:-

                                                ( As mentioned in the certificates )

1.         Illahi Bux: Injury No:1 as shujah-e-Khafifah Injury, No:2 as Jarah Ghayr  Jaifah damiyah

2.         Toufique Ahmed: Injury No:1 Shujah-e-Khafifah

3.         Khadim Hussain: injury No:1 to 4 Shajah-e-Khafifah

4.         Hakim Ali: injury No:1 as Shijah-e-Mudiha

5.         Safia: injury No:1 as Shjjah-i-Khafifah, injury No:2 Jurh Ghayr Damiya

6.         Hafiza: injury No:1 and 2 as 337-Lii other hurts

7.         Gul Muneer: injury No:1 as Shujah-e-Khafifah

8.         Rabnawaz: injury No:1 as Shujah-e-Khafifah

9.         Shahnawaz: injury No:1 as Shujah-e-Khafifah

 

 

In the case of FAQIR HUSSAIN alias Bali  V., The STATE and others (2014 S C M R 1502)  Honourable supreme court of Pakistan has held as under:-

After hearing the learned counsel for the parties at some length and going through the record of investigation with their assistance we have found that the first allegation levelled against the petitioner in the F.I.R. was that he and his co-accused had collectively given a beating to Kaleem Ullah and Sami Ullah P.Ws. According to the medical evidence collected during the investigation all the injuries sustained by the said injured victims attracted offences which are bailable. The next allegation levelled in the F.I.R. was that a co-accused of the petitioner namely Ishfaq had given an injury to Rehan deceased with the butt of his rifle and it is admitted at all hands that the petitioner had not caused any injury to the deceased at all. The third allegation levelled in the F.I.R. was that the petitioner and his co-accused had abducted Rehan deceased and we have noticed in this context that the provisions of section 365, P.P.C. were neither invoked in the F.I.R. nor any charge has so far been framed against the petitioner for such an offence. Apart from that during the investigation it had been found by the investigating agency that the story regarding abduction of the deceased by the petitioner and his co-accused was unfounded and this is so mentioned in the report submitted under section 173, Cr.P.C. The fourth and the last allegation levelled in the F.I.R. was that the petitioner and his co-accused had made Rehan deceased to drown in a nearby river but even that part of the story was found by the investigating agency to be untrue and this finding of the police is also specifically recorded in the report submitted under section 173, Cr.P.C. The investigation of this case has already been finalized and a Challan has been submitted and, thus, physical custody of the petitioner is not required at this stage for the purposes of investigation.

 

7.       The incident took place on 14-8-2019 and the investigation officer visited the place of wardat on 16-8-2019 wherefrom recovered two bloodstain lathies and some bloodstain pieces of bricks, the recovery after two days from the place of wardat creates some doubt. A further statement of complainant was recorded on 17-8-2019 wherein he improved the story and added names of the witnesses and shown them as injured of the incident whereas in the FIR their names were not disclosed by the complainant.

8.       Complainant himself present and place on record the copy one entry No: 29-2145 dated: 14-3-19 which show that police referred the injured to the doctor; in the last of said entry another entry is available which also shows that some other persons were also referred by the police to the doctor for treatment. These entries do not speak about the details of incidents nor were the names of the accused mentioned in the said entries. The time of its recording is also 2145 and 2150 hours whereas in the FIR time of incident shown by the complainant is 1730 hours, all these circumstances make the case one of further inquiry.

9.       It is the well-settled principle of law that deeper appreciation of evidence is not permissible under the law and the bail applications are to decided tentatively based on material available in the record. The material includes FIR, statements under section 161 Cr.P.C and medical evidence and other material whatever collected by the investigation officer during the investigation, all these things are to be assessed tentatively.

10.     Form the tentative assessment of material available on the record I am of the view that applicants made out their case for grant of bail, therefore all applicants who have applied for pre-arrest bail their bail applications are allowed and interim bail already granted to them by this court is confirm on the same terms and conditions. The applicants who have applied for their post-arrest bail, their bail applications are allowed, they should be released on furnishing solvent surety in the sum of Rs.100000/ each and PR bonds in the like amount to the satisfaction of the trial court.

11.     In the above terms, all the applications are disposed of along with listed applications.

12.     These the reason for my short order dated: 20-01-2020.       

 

 

 

                                                          J U D G E