IN THE HIGH COURT OF SINDH BENCH AT SUKKUR
Cr. Bail
Application No.S-678 of 2021
Applicant: Rahib,
through
Mr. Dareshani
Ali Hyder Ada, Advocate
Complainant: Mst. Reshman, through
Mr. Achar
Khan Gabol, Advocate
State: Through Mr. Khalil Ahmed Maitlo
Deputy
Prosecutor General.
Date
of hearing: 20.12-2021
Date
of Decision: 20.12-2021
O R D E R
ZULFIQAR
ALI SANGI, J.-
Through captioned bail application, Applicant/accused Rahib
son of Khan Muhammad Unar is seeking his pre-arrest
bail in FIR No.66/2021, registered at Police Station Abran,
under sections 302, 337-H(2), 109, 149 PPC. His earlier pre-arrest bail plea
was declined by the learned Additional Sessions Judge-III, Naushahro
Feroze, vide order dated 24.08.2021.
2. Briefly the facts of the prosecution case are that on
23.04.2021 at 1500 hours, complainant Mst. Reshman
lodged FIR stating therein that her husband Ali Nawaz was serving as Police
Constable, about five months ago Irfan Unar was
murdered by some unknown persons and Rahib Unnar (present accused) had lodged such
FIR against her husband Ali Nawaz and his nephews. In that case her husband was
granted bail and he was trying to settle the matter on Holy Quran but Fouji Shamshad used to say that
after committing murder of Ali Nawaz they would settle the matter. On
22.4.2021, complainant was ill and her husband Ali Nawaz was taking her on his
125 motorcycle for medical checkup to Abran, Bukhshal and Munawar Ali Unnar
were also following them. When they reached near katcha
path Soomar Mashori
abandoned tube well at about
3. Learned counsel for the applicant 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 applicant has falsely been implicated due to
enmity which is admitted in the F.I.R; that the ocular account is inconsistent
with the medical evidence as according to prosecution story three accused had
caused fire arm injuries at the left arm of deceased but as per postmortem
report the deceased had only two injuries at his left arm; that names of
accused were not mentioned in the initial entry of the incident kept by PW Naseer Ahmed; 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 co-accused Muhammad Sharif who as per FIR had also
made pistol shot upon deceased Ali
Nawaz; lastly, he prayed for confirmation of bail. In support of his contention
learned counsel for the applicant placed his reliance on the case of Abdul
Bari Khan vs. The State (2021 P.Cr.L.J Note 56) and Mangal vs. Taj Muhammad and
another (2021 YLR Note 9).
4. Learned counsel for the complainant has opposed the
confirmation of bail and has contended that applicant is assigned specific role
of causing fire arm injury to the deceased; that complainant and PWs have fully
supported the prosecution case: that complainant has fully explained the delay
in FIR; that no malafide have been pointed out by the
applicant on the part of complainant; that motive has also been specifically
mentioned in the FIR. Lastly, he submitted that the applicant is not entitled
for confirmation of interim pre-arrest bail. He placed his reliance on the case
of Ayaz Ali vs. The State (2021 MLD 669)
and Mohsin Ali vs. The State and others (2016 SCMR
1529).
5. Learned D.P.G. adopted the arguments advanced by the
learned counsel for the complainant and has further contended that no malafide of the complainant has been pointed by the learned
counsel for the accused to falsely implicate him in this case. He has placed
his reliance on the case of Gulshan Ali Solangi and others vs. The state through P.G Sindh (2020
SCMR 249) and an unreported order of this court dated 01.11.2021 passed in
Cr.B.A.No.278 of 2021, and requested 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 applicant is nominated in the F.I.R with specific role of causing fire
arm injury to the deceased at the left arm and the said injury being injury
No.1 as per post mortem report was the cause of death of the deceased. The
version of the complainant has been fully supported by the PWs in their 161
Cr.P.C statements; 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 applicant on the part of complainant or the
investigation officer for false implication. The motive is directly alleged
against the applicant. The offence for which applicant is allegedly
involved is punishable for death or for imprisonment for life hence falls
within 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 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 applicant with the
offence and the applicant has failed to make out his case for confirmation of
pre-arrest bail. Accordingly, bail application is dismissed and the order
dated18.10.2021, whereby the applicant was granted interim pre-arrest bail, is 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