IN THE HIGH COURT OF SINDH BENCH AT SUKKUR

Cr. Bail Application No.S-278 of 2021

Cr. Bail Application No.S-301 of 2021

Applicants: 1. Shah Nawaz Tagar

2. Waqar Tagar & others, through

Mr. Ghulam Murtaza Korai, Advocate

Complainant: Ubedullah, through

Mr. Sohail Ahmed Khoso, Advocate

State: Through Shafi Muhammad Mahar

Deputy Prosecutor General.

Date of hearing: 01.11-2021

Date of Decision: 01.11-2021

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 Shahnawaz son of Shah Muhammad Tagar (Cr.B.A.No.S-278/2021) and applicants Waqar son of Mumtaz, Imtiaz son of Shah Muhammad, Mumtaz son of Shah Muhammad and Bashir son of Jan Muhammad all by caste Tagar (Cr.B.A.No.S-301/2021), who are seeking their pre-arrest bail in Crime No.01/2021, registered at Police Station Wada Machiyoon, District Khairpur, for the offences u/s 302, 148, 149 and 114 PPC. Their earlier bail plea was declined by the learned Additional Sessions Judge-I/ (MCTC) Khairpur, vide order dated 24.04.2021.

2. Succinctly the facts of the prosecution case are that on 27.01.2021, complainant Ubedullah along with his brothers Shamsuddin, Muneer Ahmed and son Zahoor Ahmed was returning from theirs land to their house. When at about 7.00 p.m, they reached at common street near the otaq of Shahnawaz Tagar, accused Sudheer armed with pistol, Waqar, Imtiaz, Shahnawaz, Bashir having lathis and Mumtaz empty handed came there and on the instigation of accused Mumtaz, accused Waqar caused two lathi blows to deceased Zahoor Ahmed on his left back side and left shoulder, accused Imtiaz caused lathi blow to deceased Zahoor Ahmed on his left arms muscle, accused Bashir caused lathi blow to deceased Zahoor Ahmed on his thigh and accused Sudheer made straight fire of pistol upon deceased Zahoor Ahmed which hit him on his left nipple who raising cries fell down on the ground. On the cries and fire shot co-villagers attracted there and then all the accused went away. Complainant saw that his son Zahoor Ahmed has sustained serious injuries and died within their sight. Complainant informed the police, police came there, conducted necessary formalities and shifted the dead body to civil hospital Khairpur and after postmortem handed over the dead body to the complainant party. Complainant after funeral came at PS and lodged such FIR.

3. Learned counsel for the applicants has contended that there is delay of one day in registration of F.I.R which has not been explained by the complainant; that the applicants have falsely been implicated due to enmity which is admitted in the F.I.R; that the medical officer has opined that the lathi injuries were 2 or 4 days old meaning thereby the medical evidence is inconsistent with the ocular version; that the injuries of lathies are not on vital parts of the body of the deceased; that all the PWs are closed relative of the complainant and they are highly interested; that the I.O after conducting investigation has let off the applicants and placed their names in column-II of the challan but learned Magistrate has ordered for re-investigation; that in the further investigation I.O has changed the version about the incident which makes the case of three version as such the case of applicants requires further enquiry. Lastly he prayed for confirmation of bail. In support of his contention learned counsel placed his reliance on bail order passed by this court in Cr.B.A.No.S-589/2021.

4. Learned counsel for the complainant has opposed the confirmation of bail and has contended that applicants are assigned specific role of causing lathi blows to the deceased; that complainant and PWs have fully supported the prosecution case: that complainant has fully explained the delay in FIR; that the medical evidence is in corroboration with the ocular version; that no malafide have been pointed out by the applicants on the part of complainant. Lastly he submitted that the applicants are not entitled for confirmation of interim pre-arrest bail. He placed his reliance on bail order passed by this court in Cr.B.A.No.S-426/2021, 2011 SCMR 170, 2010 P.Cr.L.J 914, 2020 SCMR 2089 and 2012 SCMR 556.

5. Learned D.P.G. adopted the arguments advanced by the learned counsel for the complainant and has further contended that in reinvestigation the I.O has fully involved the present applicants in the commission and Department action has also been suggested against the first I.O. He has placed his reliance on 1998 SCMR 01 and requests for rejection of bail.

6. I have considered the arguments advanced by learned counsel for the respective parties and have gone through the material available on the record with their able assistance.

7. Admittedly the applicants are nominated in the F.I.R with specific role of causing lathi blows to deceased, the version of the complainant has been fully supported by the PWs in their 161 Cr.P.C statements; the ocular version is supported by the medical evidence; the delay in registration of F.I.R has been properly explained by the complainant in the F.I.R; no malafide has been pointed out by the applicants on the part of complainant for false implication; the offence for which applicants are allegedly involved is punishable for death or for imprisonment for life hence falls within prohibitory clause of section 497 Cr.P.C, record reveals that re-investigation was conducted by Inspector Ghulam Ali Jumani who in his report has stated that murder of deceased Zahoor Ahmed has been committed by all the accused nominated in the FIR, he also stated that the Investigating Officer and the Medical Officer have given favour to the accused and also suggested legal action against them, the case law cited by learned counsel for the applicants is distinguishable to the case of present accused and is not applicable in this case while the case law referred by learned counsel for the complainant and DPG is fully applicable to the case in hand. 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 at bail stage.

8. In these circumstances; I am of the considered view that there is sufficient material available with the prosecution which connects the applicants with the offence. In the circumstances, the applicants have failed to make out their case for grant of pre-arrest bail. Accordingly, both the criminal bail applications stand dismissed and the order dated 06.05.2021 and 24.05.2021, whereby the applicants were granted interim pre-arrest bail, are hereby recalled.

9. The observations made hereinabove are tentative in nature only for the purpose of deciding the instant bail application, 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