IN THE HIGH COURT OF SINDH, BENCH AT SUKKUR

Present;

Mr. Justice Amjad Ali Sahito

Cr. Bail Appln. No. S – 485 of 2021

Applicant : Syed Sajjad Ali Shah S/o Syed Ameer Hussain Shah

Through Mr. Saeed Ahmed Bhatt Advocate

Complainant : Lal Bux Soomro, through Mr. Sohail Ahmed Khoso Advocate

Respondent : The State

Through Mr. Zulfiqar Ali Jatoi, Additional PG for the State

Dated of hearing: 16.09.2021

Date of order : 16.09.2021

O R D E R

AMJAD ALI SAHITO, J – Through instant bail application, the applicant/accused seeks pre-arrest bail in Crime No.54 of 2021 registered at Police Station Khuhra, district Khairpur for an offence punishable under Sections 302 PPC. The bail plea of the applicant/accused has been declined by learned Ist. Additional Sessions Judge/(MCTC), Khairpur vide order dated 03.08.2021.

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, hence need not to reproduce the same hereunder.

3. It is contended by learned counsel for the applicant/accused that he is innocent and has falsely been implicated in this case by the complainant with ulterior motives; that there is delay of 21 days in lodgment of the FIR, for which no such plausible explanation has been furnished by the complainant; that this is an unseen and un-witnessed incident as the baby Bhanul while playing with other girls in the house of the present applicant/accused suddenly fell-down and become unconscious, she was immediately taken to GIMS Hospital, but died on the way; that the ocular version furnished by the complainant is unbelievable; that the complainant demanded money from the applicant/accused, which was refused, hence he has registered the present false FIR; that there is no medical evidence available on record to support the ocular version of the complainant; that infact the deceased baby Bhanul died by her natural death and her dead body was buried in presence of the co-villagers but no one has come forward from the entire village to act as witnesses or mashir in the present case, whereas, the complainant is maternal-uncle of the deceased baby Bhanul, though her parents are alive; that challan of the case has been submitted by the police and the applicant/accused is no more required for further enquiry; that during pendency of investigation, the applicant moved an application to DIG Police Sukkur for impartial investigation, such inquiry was conducted in which the present applicant/accused was declared innocent; that in the circumstances, the case against the applicant/accused calls for further inquiry as envisaged under Sub-Section (2) of Section 497 Cr.P.C.

4. Learned counsel for the complainant as well as Additional PG appearing for the State prayed for dismissal of instant bail application by contending that the deceased baby Bhanul used to go the house of the present applicant/accused for getting the Quranic education where she was murdered; that the allegations are serious in nature and such type of incidents are often happening in our country that minor girls are being subjected to zina and murdered; that there is no such enmity between the applicant/accused and the complainant; that the delay has properly been explained, as the complainant moved an application to the SSP as well as another application Sindh Human Rights Commission, which was referred to IG Police and then the FIR of the complainant was registered; that the applicant/accused is very influential person of the area; that the version of the complainant is supported by the witnesses in their 161 Cr.P.C statements including mother of the deceased namely Mst. Haseena. In support of their contentions, they have relied upon the cases of Riaz Ahmad vs. The State (2009 SCMR 725) and Gangoo Mal and others vs. The State (2019 M L D 1569).

5. I have heard the learned counsel for the applicant/accused, learned counsel for the complainant, learned Additional PG for the State and perused the record. No doubt the name of the applicant/accused is transpiring in the FIR, but admittedly this is an unseen and un-witnessed incident. There is delay of 21 days in lodgment of the FIR for which no plausible explanation has been furnished by the complainant. Further during pendency of the investigation, the applicant/accused moved an application to AIGP Sukkur for conducting fair and impartial inquiry and such enquiry was conducted by Inspector Ghulam Ali Jumani. In the finding of the Enquiry Officer, it has been stated that Mst.Tauqeer Fatima, the sister of present applicant/accused used to teach Holy Quran to some of the girls of the village in her house, where deceased baby Bhanul D/o Muhammad Ibrahim Soomro aged about 08 years was also learning Quran and on the date of incident, she while playing with other girls suddenly fell-down and went unconscious, as such her parents were immediately informed and she was taken to GIMS Hospital, but she died on the way. It is further opined by the Enquiry Officer that he has recorded the statements of other girls namely Khalida, Fareeza, Shahadat Bibi and Faiza Batool, all verbally disclosed that they all were playing in the house of applicant/accused and baby Bhanul fell-down and went unconscious. The Investigating Officer also verified the facts brought on record from all corners and he was also satisfied that allegedly the deceased died by her natural death, but he has also suggested that since the deceased girl was buried without conducting postmortem, hence he requested to the concerned authorities exhumation and conducting postmortem. Furthermore, the ocular version is not supported by the medical as well as circumstantial evidence. Learned counsel for the applicant/accused has pleaded malafides on the part of the complainant as the real father of the deceased has not lodged the FIR, but the present complainant being maternal-uncle has lodged the FIR in order to gain money from the applicant/accused, hence he has been falsely implicated in this case. The challan of the case has been submitted and the applicant/accused is no more required for the purpose of investigation and at bail stage only tentative assessment is to be made. In such a situation, the learned counsel for the applicant/accused has made-out a case for grant of bail in view of Sub‑section (2) of Section 497 Cr.P.C. Consequently, the instant bail application is allowed and the interim pre-arrest bail already granted to the applicant/accused vide dated 05.08.2021 is confirmed on same terms and conditions. He is directed to join the trial. It is made clear that if the applicant/accused failed to appear before the trial Court, the trial Court would be at liberty to take action against him in accordance with law. There is no cavil to the proposition laid down in the case-law relied upon by learned counsel for the complainant, but it has no relevancy to the facts and circumstances of the case in hand.

6. The observations made hereinabove are tentative in nature and will not prejudice the case of either party at the trial.

Judge

ARBROHI