ORDER SHEET

IN THE HIGH COURT OF SINDH BENCH AT SUKKUR

Cr. Bail Application No.S-148 of 2022

Applicant: Muhammad Sharif, through

Mr. Nisar Ahmed Bhanbhro, Advocate

Complainant: Mst. Reshman, through

Mr. Achar Khan Gabol, Advocate

State:    Through Mr. Aftab Ahmed Shar,

Additional Prosecutor General

Date of hearing:  18.07.2022

Dated of order:   18.07.2022

O R D E R

Shamsuddin Abbasi, J: Applicant / accused Muhammad Sharif, seeks his pre-arrest bail in Crime No.66/2021, registered at Police Station Abran, for offences punishable under sections 302, 337-H(ii), 109 and 149 PPC, after rejection of his bail by learned trial court vide order dated 24.03.2022. 

2.                As per prosecution story about five months prior to lodging of FIR one Irfan Unnar was murdered by some unknown persons and such FIR was registered by Rahib Unnar against Ali Nawaz the husband of complainant Mst. Reshma. Subsequently her husband and other accused were ready to take oath on Holy Quran about innocence but Fouji Shamshad used to say that after committing murder of Ali Nawaz, they would settle the matter. It is alleged that On 22.04.2021 complainant was feeling ill, hence her husband Ali Nawaz took her on his motorcycle for medical checkup at Abran, as soon as they left house, P.ws Buxial and Munawar Ali also followed them on their motorcycle, when they reached near Katcha path Soomra Mashori abundant tube well where at about 7.15 a.m six armed persons emerged out from the empty water tank of tube well, who were identified to be Rahib, Wasayo with DBBL guns, Dadan with pistol, Ranjhan with SBBL gun, Sharif ( present applicant) with pistol and Suleman with SBBL gun, they all challenged the complainant party and kept them silent on gunpoint. In the meantime, accused Rahib made straight fire from his gun on Ali Nawaz, on seeing such situation, she fallen her down from motorcycle and such fire hit to Ali Nawaz on his left forearm, accused Allah Wasayo made straight fire upon Ali Nawaz which also hit him on his left arm, injured Ali Nawaz in order to save himself tried to slip away but accused Sharif made fire from his pistol on Ali Nawaz, which hit him on his left forearm and then all the accused persons made fires upon Ali Nawaz who after covering half furlong fell down on the ground and then all the accused persons raising slogans, making aerial firing and declaring that at the instigation of accused Fouji Shamshad, they have committed murder of Ali Nawaz and then all the accused persons went away. Thereafter, PWs Naseer Ahmed and other villagers gathered at the place of incident they all saw that Ali Nawaz had sustained firearm injuries, blood was oozing and within their sight he died at the spot.

3. Learned counsel for the applicant contended that there was delay of thirty two (32) hours in lodgment of FIR without plausible explanation; that during investigation applicant was found innocent and his name was placed in column-II of the challan sheet; that such challan has been accepted by the concerned Magistrate; that this is a case of two versions; that there is inconsistency in between medical evidence and ocular version; that Magistrate has not taken cognizance against him and only in case diaries his name was placed. He further contended that in particular situation of the case at the first stance learned Magistrate has to issue summons in order to procure his attendance and in case of failure coercive action could be taken against him. He finally prayed for confirmation of interim pre-arrest bail already granted to applicant.

4.                On the other hand, learned Additional Prosecutor General, assisted by learned counsel for the complainant has submitted that applicant is nominated in the FIR with specific role pf causing fire arm injury to deceased; that cognizance has been taken by the concerned Magistrate; that the ocular version is corroborated by medical evidence; that the offence carries capital punishment, therefore he is not entitled for extra ordinary concession of bail.

5.                Heard learned counsel for the respective parties and perused the material available on record.

6.               From tentative assessment of record, it appears that applicant is nominated in the FIR with specific role of causing fire arm injury to deceased on his upper part of left arm and such ocular version is corroborated by medical evidence. During investigation prosecution witnesses have supported the version of complainant. Offence falls within the prohibitory clause of section 497 Cr.P.C. and it carries capital punishment. It is well settled law that bail before arrest cannot be granted unless person seeking it satisfies conditions on the point of malafide on the part of prosecution for his false implication. In the present, case applicant has failed to prove his case on this point except recorded murderous enmity as motive. Admittedly there is existence of murderous enmity between parties and it is well settled proposition of law that motive is always treated as double edged weapon which cuts both sides. The point raised by learned counsel for the applicant that during investigation he was found innocent and his name was placed in column-II of the challan and such challan has been accepted by the concerned Magistrate and did not take cognizance against him but mentioned his name in the case diaries along with the names of other absconders. This contention is not correct for the reason that the concerned Magistrate has passed order dated 07.12.2021, on the application of applicant, which reveals that he has taken cognizance on the very first day when challan was submitted before him against all the accused including present applicant and it further reveals that due to bonafide clerical mistake the case dairy was typed incorrectly. Such correction was made by the concerned Magistrate in the subsequent diaries. Moreover, cognizance of offence is taken, not of individual accused. Applicant has challenged twice impugned order passed by learned Magistrate before this court but failed to get any favour. Even it is well settled proposition of law that opinion of police is not binding upon courts as has been held in the case of Shoukat Ilahi v. Javed Iqbal and others (2010 SCMR 966), which reads as under:-

“7. As regards grant of bail on the ground that police declared the petitioner innocent during investigation, suffice it to say that it is not a valid ground for grant of bail as the bail can be granted in the case falling under prohibitory clause; firstly on the ground if the Court finds that there are reasonable grounds for believing that the accused has not committed the offence; secondly, the accused is sick, infirm, under the age of 16 years, his remaining in jail would be detrimental to his life or woman; and thirdly, if the case requires further inquiry into the guilt of the accused that he has not committed a non-bailable offence etc. Such facts are not available in the present case, therefore, the petitioner cannot take benefit solely on the ground that the police found him innocent. Even otherwise, the opinion of police is not binding upon the courts.”

It is matter of record that this court has declined bail to co-accused Rahib whose role is on identical footings. It is informed by learned APG that after rejection his pre arrest bail, now he is absconder.

7. In my considered view learned counsel for the applicant has failed to make out his case for grant of Pre-arrest bail for the reason that ingredients for grant of pre-arrest bail are missing in case of applicant/accused, therefore, bail application is dismissed and the interim pre-arrest bail already granted to present applicant vide order dated 31.03.2022 is hereby recalled.

8.              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.

J U D G E

Suleman Khan/PA