IN THE HIGH COURT OF SINDH BENCH AT SUKKUR

Cr. Bail Application No.S-456 of 2021

Cr. Bail Application No.S-467 of 2021

Applicants: Mouj Ali Rid, through

through Mr. Saeed Ahmed Bhatt, Advocate

Niaz Hussain Rid, through

Mr. Ghulam Shabbir Bhutto, Advocate

Complainant: Gul Bahar Rid, through

Mr. Ghulam Rasool Narejo, Advocate

State: Through Syed Sardar Ali Shah Rizvi

Deputy Prosecutor General.

Date of hearing: 04-10-2021

Date of Decision: 04-10-2021

O R D E R

ZULFIQAR ALI SANGI, J.- By this common order I intend to dispose of captioned two bail applications arising out of same crime, filed by applicant Mouj Ali s/o Pahelwan by caste Rid (Cr.B.A.No.S-456/2021) and applicant Niaz Hussain s/o Muhammad Sachal by caste Rid (Cr.B.A.No.S-467/2021), who are seeking their post-arrest bail in Crime No.56/2021, registered at Police Station Kotdiji, for the offences u/s 302, 506/2, 148 and 149 PPC. Their earlier bail plea was declined by the learned Additional Sessions Judge-I/ (MCTC) Khairpur, vide order dated 17.07.2021.

2. Briefly the facts of the prosecution case as narrated by complainant Gul Bahar in the FIR, are that for last six months accused Mahboob Rid party was issuing them threats for leaving the harap of land of Sirai Aijaz Hussain otherwise they would be murdered as they have dispute with him on the said land. On the night of incident dated 20.05.2011, complainant along with his brother Taqi were irrigating the said land where his brother Ghulam Raza and cousin (Phuphat) Samano Khan brought tea for complainant and it was about 0230 hours, when they saw and identified on the torch light as Mehboob Ali armed with KK, Rahib armed with pistol, Niaz alias Nazo armed with KK, Mureed Hussain armed with rifle, Mouj Ali armed with pistol and three unknown persons armed with repeaters, they all pointed their weapons upon the complainant party and controlled over them. Accused Mehboob Ali, Niaz Ali alias Niazo, Rahib and Mureed Hussain made direct fires upon his brother Ghulam Taqi which hit him who while raising cries fell down on the ground, then all the accused persons making aerial firing ran away. Thereafter complainant party saw that Ghulam Taqi has sustained firearm injuries and blood was oozing and in the way to hospital he succumbed to injuries and died. Then complainant appeared at Police Station and lodged such FIR.

3. Learned counsel for the applicant Mouj Ali has contended that there is delay of about 12 hours in lodging of FIR; that no active role has been assigned to the applicant Mouj Ali and mere his presence is shown at the place of incident; that this is night time incident and identification of accused on torch light is a weakest type of evidence; that all the witnesses are close relatives of the complainant and no independent witness from the locality has been shown. He in support of his contention placed his reliance on Mukaram v. The State (2020 SCMR 956). Lastly he prayed for grant of post arrest bail to applicant Mouj Alli.

4. Learned counsel for the applicant Niaz Hussain adopted the arguments advanced by learned counsel for applicant Mouj Ali and further contended that enmity is admitted in the FIR and several litigations between applicant and complainant parties are pending, as such false implication of applicant cannot be ruled out and the case against applicant Niaz Hussain requires further enquiry.

5. Learned counsel for the complainant has contended that the applicants are nominated in the FIR with specific role that accused Niaz Hussain fired at deceased while accused Mouj Ali facilitated co-accused and shared common intention in the commission of offence which carries capital punishment and falls within prohibitory clause; that all the witnesses have supported the version of the complainant in their 161 C.P.C statements and the medical evidence is in line with ocular evidence. He prayed that bail application of the applicants may be dismissed. In support of his contention learned counsel for the complainant has placed his reliance on the cases of Soukat v. The State (2010 MLD 1137), Hukamzad Khan v. The State and another (2011 YLR 779), Umar Hayat and another v. The State (2009 P.Cr.L.J 1058), Zahid Shah v. The State (2001 P.Cr.L.J 134), Ashique v. The State (2010 MLD 1699), Ehtasham-ul-Haq v. The State (2009 P.Cr.L.J 1388), Moula Bux v. The State (2009 P.Cr.L.J 472), Rab Nawaz v. The State (2005 YLR 1858) and Muhammad Aslam v. The State (2010 P.Cr.L.J.914)

6. Learned D.P.G. conceded for grant of bail to applicant Mouj Ali on the ground that he has not participated in the offence actively, while opposed the bail plea of applicant Niaz Hussain and has contended that applicant Niaz Hussain has been assigned active role of firing upon deceased and there is no contradiction in ocular version and medical evidence and the medical evidence corroborates the ocular account, therefore, he prayed for rejection of the bail plea of the applicant Niaz Hussain.

7. I have considered the submissions of learned counsel for the parties and have gone through the material available on the record with their able assistance.

8. Admittedly, as per FIR no active role has been assigned to applicant Mouj Ali and mere his presence having pistol has been shown at the scene offence, however sharing of common intention by him with co-accused shall be determined at trial after recording evidence. In view of these facts and circumstances of the case, the case against applicant Mouj Ali requires further enquiry. Resultantly, applicant Mouj Ali is admitted to post-arrest bail subject to furnishing his solvent surety in the sum of Rs.200,000/- (rupees two lacs) and PR bond in the like amount to the satisfaction of the trial court.

9. However, the case of applicant Niaz Hussain is distinguishable from the case of applicant Mouj Ali. Applicant Niaz Hussain is assigned specific role of straight firing upon deceased Ghulam Taqi which hit him and he succumbed to the injuries and died. The medical evidence is fully corroborated with ocular evidence. All the prosecution witnesses have fully supported the version of complainant in their 161 Cr.P.C statements. There is sufficient iota of evidence to connect the applicant Niaz Hussain with the offence which carries capital punishment and falls within the prohibitory clause of section 497 Cr.P.C. It is well settled principal of law that the court has to make tentative assessment while deciding the bail application and deeper appreciation of evidence is not permissible. The case law referred by learned counsel for the complainant supports the case of complainant.

10. In these circumstances; I am of the considered view that the applicant Niaz Hussain has failed to make out his case for grant of post-arrest bail. Accordingly, his bail application (Cr.B.A.No.S-467/2021) is dismissed.

11. The observations made hereinabove are tentative in nature only for the purpose of deciding the instant bail applications, which shall not, in any manner, influence the learned Trial Court at the time of final decision of the subject case.

JUDGE

Suleman Khan/PA