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 7.15 a.m six armed person emerged out  from the empty water tank of tube well, who were identified as Rahib, Wasayo both armed with DBBL guns, Dadan with pistol, Ranjhan with SBBL gun, Sharif with pistol and Suleman with SBBL gun. They challenged the complainant party and kept them silent on gun point. Then accused Rahib made straight fire from his gun at Ali Nawaz which hit him on his left forearm, accused Allah Wasayo and Sharif also made straight fire upon Ali Nawaz which also hit him on his left arm and then all the accused persons made firing upon Ali Nawaz who fell down on the ground and then all the accused raising slogans, making aerial firing and declaring that at the abetment of accused Fouji Shamshad Unnar, they have committed murder of Ali Nawaz and went away. Thereafter PWs Naseer Ahmed and other villagers came at the place of incident who all saw that Ali Nawaz had received fire arm injuries and died. Witness Naseer Ahmed conveyed such information of incident to police to which police came and shifted the dead body to Civil Hospital Naushahro Feroze and after postmortem the dead body was brought at village and after getting free from funeral ceremony, the complainant went to Police Station and lodged such FIR.

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