ORDER SHEET

IN THE HIGH COURT OF SINDH BENCH AT SUKKUR

Cr. Bail Application No.S-795 of 2021

Cr. Misc. Application No.S-882 of 2021

 

Date

               Order with signature of Judge

           

Applicant:                                Faiz Muhammad Shar, through

                                                Mr. Shabbir Ali Bozdar, Advocate

                                               

Complainant:                           Abdul Hafeez Shar, through

                                                Mr. Ubedullah Ghoto, Advocate

 

State:                                       Through Mr. Shafi Muhammad Mahar

                                                Deputy Prosecutor General

 

Date of hearing:                       14.02.2022

 

Dated of order:                         14.02.2022

                                                 

O R D E R

 

Zulfiqar Ali Sangi, J:         Through captioned bail application, applicant/ accused Faiz Muhammad son of Aasodo Khan Shar, is seeking his   pre-arrest bail in FIR No.66/2021, registered at Police Station Ubauro, District Ghotki, u/s 302, 436, 427, 429, 114, 147 and 148 PPC. Earlier his same plea was declined by the learned Additional Sessions Judge/MCTC Ubauro, vide order dated 12.06.2021.  

2.                It is alleged that on 21.05.2021 at about 1000 hours present applicant/accused along with his companions Mumtaz Hussain, Ghulam Nabi, Mawali, Jan Muhammad and Meharullah on the instigation of co-accused Mawali set on fire the thatched hut of complainant party with the result son of complainant namely Izat Khan, three goats, 30 mounds of wheat, four cots etc were burnt and later on his son Izat succumbed to burnt injuries and died.

3.              Learned counsel for the applicants has contended that there is delay of 18 hours in registration of FIR and same has not been explained. He next contended that complainant with malafide intention has registered the FIR with false facts due to enmity over landed property. He also contended that there are general allegation and no specific role has been assigned against the applicant. He further contended that all the PWs are closed relative of the complainant hence they are interested. He also contended that JIT recommended the case to be disposed of under ‘C’ false class however, learned Magistrate has taken the cognizance. He lastly prayed that the interim pre-arrest bail granted to present applicants may be confirmed.

4.              Learned counsel for the complainant and learned DPG have opposed the bail on the grounds that the applicant is nominated in the FIR, there is direct allegations against the applicant, and versions of the complainant has been supported by the PWs in their 161 Cr.P.C. statements as well as offence fall within prohibitory clause of section 497 Cr.P.C, and there is no malafide on the part of complainant to falsely implicate the applicant. They further contended that at the time of hearing of bail application the applicant was absent therefore he is not entitled for the extra-ordinary relief of pre-arrest bail. Lastly they prayed that application may be dismissed.

5.              I have heard the learned counsel for the parties and perused the material available on record with their able assistance.

6.           Admittedly there is general allegation of setting the hut of complainant on fire against all the accused and it will be determined at the trial as to who is actual culprit of it. There is delay of 18 hours in lodging of FIR as such deliberation and consultation cannot be ruled out. Further, all the PWs are close relative of the complainant while the previous enmity also exists and after investigation by the JIT the case was recommended to be disposed of under ‘C’ false class, however learned magistrate did not agree with the JIT report and has taken the cognizance of the case. There is no cavil to the proposition that the opinion/report of the Investigation Officer does not bind upon the court in any manner yet the courts can peep into its persuasiveness and vitality for the purpose of grant or refusal of bail tentatively to the accused.

7.                The report of JIT is also scanned as some facts related to the present incident has been brought on record by the JIT i.e (a) it came on record that complainant was not available in the house at the time of incident, (b) offence of fire was not committed by the accused but at the time of fire there was fast wind, (c) hand of Mst. Salma was also burnt while saving the deceased; importantly the complainant concealed this fact that at that time hand of Mst. Salma was also burnt. All these facts bring the case of applicant one of further inquiry.

8.                It is settled principle of law that bail application is to be decided tentatively and deeper appreciation of evidence is not permissible under the law. From the tentative assessment of the material available on record, the applicant makes out the case for confirmation of his  pre-arrest bail, therefore, the interim pre-arrest bail already granted to the applicant / accused  by this court vide order dated 13.12.2021, is hereby confirmed on same terms and conditions. 

9.                Since the bail of co-accused Faiz Muhammad has been confirmed by this court and the role of respondent is less than to that of accused Faiz Muhammad, therefore no case for cancellation of bail of respondent / accused Mawali is made out. Resultantly Criminal Miscellaneous Application No.S-882/2021 is dismissed.

10.            Observations made herein above are tentative in nature and will not cause any prejudice to either party at the trial.

11.              Office is directed to place a signed copy of this order in the captioned connected matter.

 

                                                                             JUDGE

 

 

Suleman Khan/PA