IN THE HIGH COURT OF SINDH BENCH AT SUKKUR

Cr. Bail Application No.S-449 of 2021

Applicants: Javed Dahar and others, through

Mr. Ubedullah Ghoto, Advocate

Complainant: Muneer Ahmed, through

Mr. Nawab Ali Pitafi, Advocate

The State: Through Mr.Shafi Muhammad Mahar,

Deputy Prosecutor General

Date of hearing: 20.09.2021

Dated of order: 04.10.2021

O R D E R

Zulfiqar Ali Sangi, J: Through captioned bail application, applicants/accused Javed son of Ali Nawaz, Ghulam Murtaza son of Ali Nawaz and Ali Hassan son of Muhammad Mithal Dahar, are seeking their post-arrest bail in FIR No.222/2019, registered at Police Station Daharki, District Ghotki, under sections 302, 365-B, 337-H(ii), 337-A(ii), 337-F(i), 337-F(v), 147, 148 and 149 PPC. Their earlier post-arrest bail plea was declined by the learned Additional Sessions Judge/MCTC, Ubauro, vide order dated 12.06.2021. After rejection of their bail application, they approached this court for the same relief.

2. The brief facts of the prosecution case as per FIR registered on 06.10.2019 at 1500 hours, are that on 04.10.2019 nephew of the complainant Wajid Ali got free will marriage with one Mst. Asma daughter of Ali Nawaz to which her brothers Javed and Ghulam Murtaza antagonized and threatened that in revenge, they will abduct Mst. Gul Pari. On 05.10.2019, complainant and his sons namely Maqbool Ahmed and Sheeraz along with other family members were sleeping in their house, where at 0230 hours of night, they heard cries from the house of his nephew Wajid Ali, he along with his above-named sons rushed there, where they saw on the flash of glowing electric bulbs that his brother-in-law namely Waryam and his brother Abdul Qadeer, relative Ahsan, Nadeem, niece Mst. Gul Pari and their other family inmates were standing there. They also found that applicants/accused Javed, Ghulam Murtaza and Khalil all armed with hatchets, Sajad armed with K.Kov, Shah Ali, Jatoi and Khan Mohammad @ Aijaz, Deen Mohammad and Shoukat Ali armed with Pistols, Dadan, Mohsin, Majid armed with hatchets, Ghulam Mustafa and Ali Hassan, Khair Mohammad, and Rajib armed with cudgels were also standing there. They asked the complainant party not to come near to them. Thereafter accused Deen Mohammad, Shoukat, Jatoi and Shah Ali dragged Mst. Gul Pari from her arms and were abducting away her from her house. Meanwhile, Waryam brother-in-law of complainant restrained from the abduction of Mst. Gul Pari. It is alleged that accused Sajjad made straight fire from his K.Kov upon the Waryam on his head and he fell while crying and succumbed to the injuries on the spot. Thereafter the complainant party advanced to rescue Mst. Gul Pari from the accused, the accused Javed and Khalil caused hatchet blows to complainant Muneer Ahmed on his head while accused Rajib caused lathi blow on his buttock. The accused Ai Hassan caused lathi blow to PW Ahsan Ali whereas accused Khair Mohammad and Ghulam Mustafa caused lathi injuries to one Sheeraz (son of the complainant). The accused Majid caused hatchet blows to PW Nadeem on his head and accused Murtaza caused hatchet blow to Maqbool Ahmed on his head while accused Dadan also caused him hatchet blows to him which he received whereas the accused Rajib also caused him lathi blow on his shoulder. Complainant party raised cries thereafter accused who were armed with weapons made aerial firing to create harassment and have abducted away Mst. Gul Pari and went away.

3. Learned counsel for the applicants has submitted that the applicants have falsely been implicated in this case; that there is delay of about 12 hours in registration of FIR which has not been explained by the complainant; that the injuries attributed to the present applicants as per medical certificates of the injured are punishable up to five years and do not fall within the ambit of prohibitory clause of section 497 Cr.P.C; that the present applicants have not caused any injury to deceased Waryam, therefore vicarious liability is to be determined at the trial; that there are contradictions in between medical and ocular evidence; that the matrimonial dispute between the parties is admitted as such false involvement of applicants cannot be ruled out; that the hatchets allegedly recovered on the pointation of applicants Javed and Ghulam Murtaza have been foisted upon them and the same were not found stained with human blood; that in the above circumstances the matter requires further enquiry and applicants are entitled for grant of post-arrest bail. Learned counsel for the applicants in support of his contentions placed his reliance on the cases of Abu Bakar Siddique alias Muhammad Abu Bakar v. The State and others (2021 SCMR 540), Khiyal Saba and another v. the State and others (2020 SCMR 340), Wajid Ali v. The State and another (2017 SCMR 116), Kouro and another v. The State (2004 YLR 2434), Allah Ditto and another v. The State (2011 P. Cr. L.J 485), Nooruddin and another v. the State (2005 MLD 1267), Order dated 04.07.2019 passed by Honble Supreme Court in the case of Makhan v. Haji Mula Bux and another (in Criminal Petition No.607 of 2019), order of this court dated 03.10.2019 passed in Cr.B.A.No.448 of 2019 and order dated 10.02.2020 passed in Cr.B.A.No.S-708 of 2019 Shahnawaz v. The State.

4. On the other hand, learned counsel for the complainant has vehemently opposed the grant of bail and contended that the applicants are nominated in the FIR with specific role and that they were not only present at the place of occurrence duly armed with hatchets and lathis but also facilitated the co-accused in offence of abduction and murder; that the medical evidence is in support of ocular evidence; in support of his contention learned counsel for the complainant has placed his reliance on the cases of Muhammad Ali v. The State (PLD 2012 Sindh 772), Ehsan Akbar v. The State and 2 others (2007 SCMR 482) and Muhammad Abbasi v. The Sate and another (2011 SCMR 1606).

5. Learned DPG supported the arguments advanced by the learned counsel for the complainant and has contended that the applicants are nominated in the FIR with specific role and also are vicariously liable for the offence as they have shared common intention in the commission of offence of abduction of Mst. Gul Pari and murder of deceased Wariyam, as such they are not entitled for concession of bail.

6. I have heard the learned counsel for the applicant, learned counsel for the complainant and DPG and perused the material available on record with their able assistance.

7. The record reflects that co-accused (at present not before this court) in the present case have applied for their pre-arrest bail which was declined up to the Honourable Supreme court of Pakistan. However, these applicants have filed their post-arrest bail. It is fact that pre-arrest bail and bail after arrest are based on entirely different principles and the rejection of an application for the former does not have any bearing on the latter. Observation made in an order dealing with a matter of bail before arrest do not ordinarily and should not generally affect the exercise and undertaken or to be undertaken after arrest, for grant or refusal of bail.

8. As per the prosecution case the applicants were specifically nominated in the FIR with their specific roles and participation; motive has been admitted by the applicant's party. Although the role against the present applicants is of causing injuries to the PWs and not to the deceased, however, in the present case five persons besides the deceased received injuries from the hands of accused persons. The recovery of the crime weapons used in the commission of offence was effected from the applicants Javed and Ghulam Murtaza. The injuries sustained by the PWs are supported by the Medico-legal certificate issued by Medical Officer which reflects that the injured were beaten by the applicants mercilessly and one innocent person Waryam succumbed to the injuries, such merciless act of the applicants reflects that the applicants shared their common intention with each other for commiting the ofenec of murder of deceased Waryam, abduction of Mst Gul Pari and for causing injuries to the witnesses in lieu of the revenge as stated in the FIR. Honourable Supreme Court in case of Ghani Khan V. The State and another (2020 S C M R 594) has held as under:-

2. After hearing the learned counsel for the petitioner, learned counsel appearing on behalf of the State and perusal of available record, it has been observed by us that the petitioner is named in the FIR with specific role of firing at the complainant Hazrat Ullah, which as per the statement of the complainant, hit him on his right thigh and right side of his chest. The said allegation is prima facie supported by the medical evidence. The offence alleged against him falls within the prohibitory clause of section 497(2) Code of Criminal Procedure. In these circumstances he is not entitled to the concession of bail.

9. This is not a simple case of injuries to the injured persons as has been argued by the counsel for the applicants but during an attack by the applicants one innocent person namely Waryam Dahar has lost his life and the present applicants also abducted Mst. Gul Pari and she remained in their captivity for about four days and when she escaped from captivity of the applicant she came at Police Station on 09.10.2019 where her statement u/s 161 Cr.P.C was recorded in which she fully supported the case of prosecution along with specific role of applicants which they played at the time of incident. It is observed that in the cases of abduction the accused persons are playing different roles i.e. some are collecting information, some are abducting, some are guarding upon abductee and some are facilitating them, in the instant case all the applicants have a motive to abduct Mst. Gul Pari in lieu of revenge of Mst. Asma and during such abduction one person died and five persons received injuries as stated above, therefore, in the circumstances of the present case, less role on any of the applicants is not considered as a ground for grant of bail.

10. Prima facie, after meticulous assessment of the available record, there appears reasonable grounds to believe that applicants/accused are involved in the commission of alleged offence, which is punishable for death or imprisonment for life. The citations referred to by learned counsel for the applicants/accused are on different footings, even otherwise, the precedents in bail matters are of no help to a party, as it varies from case to case depending upon the facts of the each case. The deeper appreciation of evidence is not permissible at the bail stage and material is to be assessed tentatively. From the tentative assessment of the material available on record, the applicants have failed to make out their case for a grant of post-arrest bail. Accordingly, the instant bail application is dismissed.

11. The present case was registered on 06-10-2019 and yet trial has not been concluded, in these circumstances the trial court is directed to conclude the trial within three month from the date of this order under intimation to this court through Additional Registrar. In case the applicants or their counsel are found reluctant to proceed with the case, the trial court may appoint advocate for them on state expenses and do not grant unnecessary adjournments.

12. Needless to mention here that observations made hereinabove are tentative in nature and the trial Court may not be influenced by the same and decide the case on its own merits.

13. Bail application stands disposed of.

J U D G E