IN
THE HIGH COURT OF SINDH, BENCH AT SUKKUR
Cr. Bail Appln. No. S – 667 of 2020
Cr. Bail Appln. No. S – 767 of 2020
Applicants
: Bhojo
alias Din Muhammad S/o Seero Mal Shaikh &
Muzaffar Hussain
alias Zafar Ahmed S/o Qadir Bux, Phulpoto,
Through Mr. Aftab
Hussain Shar Advocate
Complainant: Vinesh Kumar,
Through Mr.
Muhammad Ali Napar Advocate
Respondent
: The
State
Through Syed
Sardar Ali Shah Rizvi, DPG for the State
Dated
of hearing: 30.08.2021
Date of
order : 30.08.2021
O R D E R
AMJAD ALI SAHITO, J – By
this common order, I intend to dispose of the above captioned post-arrest bail
applications arising out of the same Crime No.167 of 2020 registered at Police
Station Shaheed Murtaza Mirani, District Khairpur for offences punishable under
Sections 302, 120-B PPC. The bail applications of the applicants/accused have
been declined by learned Additional Sessions Judge‑I/(MCTC), Khairpur
vide orders dated 13.10.2020 and 03.11.2020, respectively.
2. The details
and particulars of the FIR are already available in the bail application and
FIR, therefore same could be gathered from the copy of FIR attached with such
application.
3. It is,
inter-alia, contended by learned counsel for the applicants/accused that the
names of the applicants/accused are not transpiring in the FIR as this is an
unseen incident; that the complainant has resiled from his earlier statement as
setout in the FIR because after 15 days of the lodgment of the FIR his further
statement was recorded by the police in which he has disclosed the names of the
applicants/accused, which carries no weight in the eye of law; that the
applicant/accused Bhojo alias Din Muhammad has been implicated by the
complainant only on account of embracing Islam, which is nothing but to exert
illegal pressure so that he may return to Hindu religion. He further submits
that the challan of the case has been filed and the applicants/accused are no
more required for the purpose of investigation. He lastly prayed that the
applicants/accused may be admitted to bail. In support of his contentions, he
relied upon the cases of Nouman Khan alias Roman vs. The State and
others (2020 SCMR 666); Asfandyar Khan and another vs. The State and another
(2020 SCMR 715); Abid Ali alias Ali vs. The State (2011 SCMR 161); Shahid
Hussain alias Multani vs. The State and others (2011 SCMR 1673); Allah Ditta
vs. The State and others (2012 SCMR 184); Muhammad Asif Javed vs. The State and
another (2020 MLD 1896).
4. Conversely,
learned counsel appearing for the complainant as well as learned DPG for the
State prayed for dismissal of the bail applications by contending that the
present applicants/accused are involved in the commission of the offence, as co‑accused
Hashmat Lal in his statement has stated that he along with the present
applicants/accused made plan to get the deceased Rajesh Kumar murdered through
serial killer namely co-accused Wahid Bux alias Wahidoo alias Budho Shar and
Sibghatullah alias Sabo Memon; that the motorcycle allegedly recovered from co‑accused
Sibghatullah alias Sabo Memon, was used in the commission of the offence; that
the offence with which the applicants/accused are charged entails capital
punishment. Learned counsel for the complainant places reliance upon the case
of Naseem
Malik vs. The State (2004 SCMR 283).
5. I have
heard the learned counsel for the parties and perused the record. It is an admitted position that this is an
unseen and unwitnessed incident and the names of the applicants/accused do not
transpire in the FIR. In the case of Allah Ditta vs. The State and others (2012
SCMR 184), the Honourable
Supreme Court while granting bail to the accused held as under;-
“………..we have observed
that occurrence in this case had taken place during a night, the same had
remained un‑witnessed and the culprits had initially remained unknown.
After about sixteen days of lodging of the F.I.R. the petitioner and his two
brothers namely Hussain Bakhsh and Sawan had been implicated in this case
through a supplementary statement made by the complainant. One of the said
brothers of the present petitioner namely Hussain Bakhsh has already been
admitted to post-arrest bail by the Lahore High Court, Lahore vide order dated
2-12-2010 passed in Criminal Miscellaneous No. 13309-B of 2010 and the role
attributed to the said co-accused was somewhat similar to that attributed to
the present petitioner inasmuch as the said co-accused had allegedly held the
deceased by his arm whereas the petitioner had allegedly pulled a rope around
the neck of the deceased and, thus, they had both allegedly taken an active
role in the murder in issue.”
6. The
reliance is also placed upon the case of Abid Ali alias Ali vs. The State (2011 SCMR
161), the Honourable Supreme Court while granting bail to the accused
held as under;
“It is settled principle of law that bail
cannot be withheld as punishment. There are various pronouncements in support
of this principle. See Ch. Abdul Malik v. The State (PLD 1968 SC 349) and
Manzoor and 4 others v. The State (PLD 1972 SC 81). It is also settled
principle of law that ipse dixit of the police is not binding on the court.
This proposition is also supported by Manzoor's case (supra). It may also be
observed that even for purposes of bail, law is not to be stretched in favour
of the prosecution as law laid down by this Court in Amir v. The State (PLD
1972 SC 27'7). It is an admitted fact that name of the petitioner is not
mentioned in the F.I.R. but his name was included in the list of accused in
supplementary statement. There is no explanation available in this regard,
therefore, the case of the petitioner falls under the category of further
inquiry, See Tahir Abbas v. The State (2003 SCMR 426). Although the challan has
been submitted in the Court and the case was fixed for hearing but still prima
facie the case of the petitioner appears to be one of further inquiry and is
covered under provisions of section 497, Cr.P.C., then it becomes a right of
accused that he be released on bail and practice of refusal in such cases where
challan is submitted should not be bar to refuse a right. See Muhammad Ismail
v. Muhammad Rafique and another (PLD 1989 SC 585). It is also settled principle
of law that observations made by superior courts dealing with the bail matter
are always tentative in nature.”
7. The applicants/accused
have been allegedly involved in the instant case on the basis of statement of
co-accused Sibghatullah alias Sabo Memon. I am also fortified by the case of Asfandyar Khan and another vs. The State
and another cited (supra), relied upon by learned counsel
for the applicants/accused, wherein the Honourable Supreme Court while granting
bail to the accused has also observed that “the
petitioners were not named in the crime report as being alongside the accused
who gunned down the deceased; all the witnesses are unanimous on the number of
accused as five; the omission is intriguing and by itself brings petitioners’
case within the remit of subsection (2) of section 497 of the Code of Criminal
Procedure 1898. Furthermore, the applicants/accused are implicated in this
case on the basis of the supplementary statement of the complainant which was
recorded with delay of 15 days. In the case of Shahid Hussain alias Multani vs.
The State and others,
(2011 SCMR 1673), the Honourable Supreme Court while granting
bail to the accused has held as under;
“The petitioner had
not been nominated in the F.I.R. in any capacity whatsoever and his name
had surfaced in this case for the first
time through a supplementary statement made by the complainant on
20-5-2010, i.e. almost a month and a half after the alleged occurrence. A
perusal of that supplementary statement made
by the complainant shows that no source of information regarding, the
petitioner's involvement in the alleged occurrence had been disclosed or
divulged therein by the complainant. It is admitted at all hands that no test
identification parade has been held in this case. The prosecution has so far
relied upon an extra-judicial confession allegedly made by the petitioner and
his co-accused before three witnesses and also upon some recoveries allegedly affected from the possession
of the petitioner and his co-accused. The learned Additional
Prosecutor-General, Punjab appearing for the State has, however, remained
unable to contradict that the alleged extra judicial confession is a joint
confession and even the alleged recoveries are joint recoveries and, thus,
their evidentiary worth may be next to nothing. The learned counsel for the
petitioner has drawn our attention towards the fact that a co-accused of the
petitioner namely Jawad Ahmad, attributed a role similar to that ascribed to
the petitioner, has already been admitted to post‑arrest bail by the
Lahore High Court, Lahore vide order dated 16-11-2010 passed, in Criminal
Miscellaneous No. 12755‑B of 2010. For the reasons recorded above we have
felt sanguine that the case against the petitioner calls for further inquiry
into his guilt within the purview of subsection (2) of section 497, Cr.P.C.”
8. The
applicants/accused are in jail and they are no more required for the purpose of
investigation. In such circumstances, the applicants/accused have made‑out
a case for grant of bail in view of subsection (2) of Section 497 Cr.P.C. Consequently,
the instant bail applications are allowed and the applicants/accused are enlarged
on bail subject to furnish solvent surety in the sum of Rs.2,00,000/- (Two Lacs) each and PR bond in the like amount to the
satisfaction of trial Court. The case-law relied upon by learned counsel for
the complainant is on distinguishable facts and circumstances hence cannot be
relied upon.
9. The
observations made hereinabove are tentative in nature and will not prejudice
the case of either party at the trial.
Judge
ARBROHI