ORDER SHEET

IN THE HIGH COURT OF SINDH BENCH AT SUKKUR

Cr. Bail Application No.S-817 of 2021

Date	Order with signature of Judge

Applicants: Noor Ahmed and another, through

Mr. Jamshed Ahmed Faiz, Advocate

Complainant: Ghulam Qadir, through

Mr. Ubedullah Ghoto, Advocate

State: Through Syed Sardar Ali Shah Rizvi,

Additional Prosecutor General

Date of hearing: 28.03.2022

Dated of order: 28.03.2022

O R D E R

Zulfiqar Ali Sangi, J: Applicants/accused Noor Ahmed and Naeem both sons of Dhani Bux Sial, are seeking their pre-arrest bail in FIR No.143/2021, registered at Police Station Mirpur Mathelo, District Ghotki, under sections 302, 201, 148 and 149 PPC. Their same plea was earlier declined by learned IV-Additional Sessions Judge Mirpur Mathelo, vide order dated 16.12.2021.

2. Briefly the facts of the prosecution case are that complainant Ghulam Qadir lodged FIR at Police Station Mirpur Mathelo on 18.08.2021 at 1100 hours stating therein that Muhammad Hassan aged about 30 years was his younger brother who had friendship with Faheem Sial. On 12.08.2021 at about 4.00 p.m said Faheem Sial came to his house and told his brother Muhammad Hassan that one plot in low price is available as such his brother while taking amount of Rs.300,000/- went with Faheem Sial to Mirpur Mathelo on his Motorcycle but did not return back while his mobile was going off. Thereafter complainant and witnesses Ghulam Hyder, Ghulam Muhammad and Barkat Ali went to the house of Faheem Sial to enquire from him the whereabouts of his brother but he did not meet with them. Thereafter complainant kept on searching his brother and on 15.08.2021 afternoon complainant along with above named witnesses went to village Qaloo Sial near Otaq of accused where they saw that each accused Noor Ahmed, Faheem, Naeem and three unidentified persons were carrying one dead body who seeing the complainant party escaped away leaving there the dead body. Thereafter complainant saw that same was the dead body of his brother whose hands were tied with rope, right wrist was fractured and fingers of both foots were cut. Complainant informed police, police came there took the dead body to civil hospital Mirpur Matheleo and on the next day after postmortem the dead body was burred. Thereafter complainant lodged the FIR.

3. Learned counsel for the applicants has contended that there is delay of about 6 days in lodging of FIR which has not been explained. He next contended that it is unseen incident and applicants have falsely been implicated by the complainant with malafide intention and ulterior motive. He also contended that the medical evidence is in contradiction with the ocular account. He further contended that no active role has been assigned to the present applicants and during investigation the applicants have been declared innocent by the I.O and their names were kept in column-II of the challan, however learned Magistrate did not agree with the police report and had taken cognizance of the offence. Lastly he submits that in these circumstances the case of applicants comes within the ambit of further enquiry and they are entitled for confirmation of interim pre-arrest bail already granted to them.

4. Learned APG assisted by learned counsel for the complainant has, opposed the confirmation of pre-arrest bail on the ground that the applicants are nominated in the FIR, who are involved in a heinous offence which carries capital punishment.

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 delay of six days in registration of FIR which has not been properly explained. The conduct of the complainant is doubtful as neither he kept any entry at concerned Police Station in respect of missing of his brother from 12.08.2021 till dead body was thrown by the accused on 15.08.2021. The complainant has also not lodged any report on 15.08.2021 which suggests that the FIR was registered with consultation and deliberation and makes the case of prosecution as doubtful.

7. Record reflects that nobody has seen the accused persons while committing the murder of deceased, there is no evidence in respect of the detention of deceased in the custody of accused persons which too makes the case one of further inquiry.

8. The complainant in FIR stated that accused persons thrown the dead body on 15.08.2021 and on the next day after conducting postmortem same was buried. On the other hand record reflects that the dead body was referred for postmortem on 16.08.2021 while the postmortem was conducted on 17.08.2021 which reflects that either the complainant is telling lie or the postmortem report is managed. Even otherwise the applicability of section 302 PPC against the applicants is yet to be determined at the trial after recording evidence. Further it is also matter of record that during investigation the applicants have been declared innocent by the I.O and their names were kept in column-II of the challan, however learned Magistrate did not agree with the police report and had taken cognizance of the offence. It is settled principal of law that deeper appreciation of the evidence is not permissible while deciding the bail plea of the accused and the same is to be decided tentatively on the basis of material available on the record.

9.     From tentative assessment of the material as has been discussed above, I am of the opinion that the applicants have made out case for confirmation of bail. Accordingly, instant bail application is allowed and ad-interim pre-arrest bail earlier granted to the applicants vide order dated 20.12.2021 is hereby confirmed on the same terms and conditions.

10.              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