IN THE HIGH COURT OF SINDH, BENCH AT SUKKUR

Crl. Bail Application No. D- 271/2021.

Date of hearing

Order with signature of Judge

For hearing of pre-arrest bail.

Before:

Mr. Justice Muhammad Faisal Kamal Alam,

Mr. Justice Amjad Ali Sahitio.

Applicant/accused: Kamaluddin son of Sajjan, Kalhoro

Complainant: Mr. Achar Khan Gabol, Advocate.

State: Mr. Aftab Ahmed Shar, Additional P.G.

Date of hearing : 02.02.2022.

Date of Order: _________

AMJAD ALI SAHITO J., Through this order, I intend to dispose of pre-arrest bail application filed on behalf of applicant/accused Kamaluddin son of Sajjan bycaste Kalhoro in Crime No.204 of 2021, offence under sections 302, 324,355, 337-H(ii), 147,148,149 PPC registered at Police Station Kandiaro, District Naushehro Feroze. Prior to this, the applicant/accused named above filed such application for grant of pre-arrest bail but the same was turned down by learned Judge Anti-Terrorism Court Naushehro Feroze vide order dated 21.12.2021 hence he has filed instant bail application.

2. The details and particulars of the FIR are already available in the bail application and FIR, same could be gathered from the copy of FIR attached with such application, hence, needs not to reproduce the same hereunder.

3. Learned counsel for applicant submits that applicant/accused is innocent and has been falsely implicated in this case. He further submits that there is inordinate delay of two days in lodging of the FIR for which no plausible explanation has been furnished; that there is no allegation against the present applicant of causing any blow to deceased but only allegation against him is that he along with co-accused caused Danda blow to PW Abdul Sattar and the injuries sustained by injured Abdul Sattar have been declared bailable. He also submits that during course of investigation, applicant/accused was found innocent and he was let off by the police and his name was shown in column No.2 of the challan, thus the case of applicant/accused Kamaluddin requires further. Lastly counsel for applicant prayed for confirmation of interim pre-arrest bail already granted to the applicant/accused. Learned counsel for applicant/accused has relied upon the cases of Ehsan-ul-Haque alias Shani vs. The State and others (2017 SCMR 114), Jahanzaib and others v. The State (2021 SCMR 63) and Khair Muhammad and Gul v. The State (2018 YLR Note 226).

4. On the other hand learned Additional P.G assisted by learned counsel for complainant has opposed for grant of pre-arrest bail on the ground that name of applicant/accused transpires in the FIR and he has caused Danda blow to PW Abdul Sattar who has received four injuries as certified by Medical Officer. Learned counsel for complainant has relied upon the cases of Muhammad Nawaz v. The State (2004 SCMR 772), M asood Ahmed alias Muhammad Masood and another v. The State (2006 SCMR 933), Muhamamd Rafique v. The State (2008 SCMR 678) and Ghazan Khan v. Mst. Ameer Shuma and another (2021 SCMR 1157).

5. I have heard learned counsel for applicants, learned Additional P.G and have gone through the material available on record.

6. In the case of Khair Muhammad and others v. The State through P.G Punjab and another (2021 SCMR 130) Hon’ble Supreme Court has held that while granting pre‑arrest bail even the merits of the case can be touched upon. No doubt name of applicant/accused transpires in the FIR, no specific role of causing any injury to deceased is assigned to him, though he was allegedly armed with Danda but he did not use the same in the commission of the alleged offence. Infact main role assigned against accused Muhammad Ramzan who made straight fire shot from his rifle upon deceased Nadeem Hussain by declaring him as Karo, so also accused Muhammad Ramzan, Aijaz Ali and Jawaid caused butt of weapons and accused Izhar caused butt of Kalashnikov to Nadeem Hussain (deceased). In the case of Qurban v. State 2017 SCMR 279 the Hon’ble Supreme Court of Pakistan has granted bail to accused who had not been attributed any overt act during the occurrence except the role of raising lalkara and further hold that in such circumstances of the case, it is for the learned Trial Court to determine, after recording evidence pro and contra, whether the accused is vicariously liable for the act of co-accused and that case was one of further enquiry and in the case of Mumtaz Hussain and 5 others v. The State (1996 SCMR 1125) the Honourable Supreme Court has held that the cases of remaining accused namely: Ghulam Raza, Ghulam Shabbir and Zaffar Iqbal, however, are distinguishable as in spite of being allegedly armed with deadly weapons like rifle, gun and hatchet, they only caused simply blunt injuries to some of the P.Ws using the wrong side of their weapons. In these circumstances, whether they share common intention with those who caused death of deceased Siddique Umar needs further enquiry. In another case of Jahanzeb and others v. state through A.G Khber Pakhtunkhwa Peshawar and another (2021 SCMR 63) Honourable Supreme Court has granted bail to accused persons on the ground that allegation against accused persons was that they resorted to indiscriminate firing, however, the deceased sustained only a single shot whereas none of the prosecution witnesses sustained even a scratch. No overt act was ascribed to the accused persons except the allegation of ineffective firing, which too was not supported by recovery of any weapon. Case of accused persons was one of further inquiry falling within the ambit of s.497(2) Cr.P.C entitling them for the concession of bail.

7. Furthermore, after the incident investigation was conducted and no sufficient material was collected by Investigating Officer against the present/accused and he was found innocent as such he was released by the police under section 169 Cr.P.C. In support of his contention learned counsel also produced letter of Superintendent of Police Naushehro Feroze whereby I.O was allowed to submit interim challan by nominating co-accused and in the end the name of present applicant/accused was shown to have been released under section 169 Cr.P.C and I.O was directed to keep the name of applicant/accused in column No.2 of the challan. Learned counsel for applicant/accused also pleaded mala fide on the part of complainant. According to complainant, one Zaffarullah filed suit for declaration, settlement of Accounts and cancellation of cheque U/O VII Rule 1 CPC and the claim of the applicant/accused is that he has provided Urea Fertilizer to the brother of deceased and in lieu thereof he has issued cheque which on presentation the said cheque was dishonoured as such due to said enmity applicant/accused has been booked in this case.

8. In view of above discussion, learned counsel for the applicant/accused have made out a good case for confirmation of bail in the light of sub section (2) of Section 497 CrPC, hence interim pre arrest bail already granted to the applicant/accused Kamaluddin vide order dated 30.12.2021 is hereby confirmed on same terms and conditions.

9. Needless to mention that the observations made hereinabove are tentative in nature and would not influence the learned Trial Court while deciding the case of the applicant on merits.

10. The bail application stands disposed of in the above terms.

J U D G E

Irfan/P.A