IN THE HIGH COURT OF SINDH, CIRCUIT COURT, LARKANA
Criminal Bail Appln. No. S-275 of 2022
Applicant: Deedar Ali Shaikh,
Through Mr. Muhammad Sharif Ghanghro, Advocate.
Complainant: A.S.I. Ghabeer Ahmed Gaad
(on behalf of State).
State: Through Mr. Aitbar Ali Bullo, D.P.G.
Date of hearing: 29-07-2022
Date of Decision: 29-07-2022
O R D E R
ABDUL MOBEEN LAKHO, J.- Through this bail application, applicant/accused Deedar Ali S/O Muhammad Ismail Shaikh seek post-arrest bail in Crime No.03/2022 of P.S. K.T Mumtaz for an offence punishable under Sections 302, 311,34 P.P.C. After rejection of his bail plea by the learned trial court vide order dated 14.04.2022.
2. Brief facts of the FIR are that the complainant A.S.I. Gabeer Ahmed Gaad lodged the F.I.R at P.S Ketty Mumtaz stating therein that he along with his subordinate staff each HC-Zahid Hussain, PC-Subgatullah and Driver PC-Ghulam Abbas with official uniform, arms and ammunitions along with investigation kit, boarded on official vehicle No.SPC-658, left P.S for patrolling while keeping entry in daily diary No.10 dated 15.02.2022 at about 1130 hours, during patrolling from various places at about 1230 hours when they reached at Picket Shandan, the Complainant received spy information that one Gada Hussain Shaikh along with his brother Deedar Ali Shaikh leveled allegation of Karo Kari upon one Rafique Ali Narejo with intention to commit murder of his wife Rasheedan Khatoon aged about 27/28 years and his niece Shabana D/O Deedar Ali aged about 17/18 years are coming from Naudero to village Izzat ji Wandh on motorcycle, on such information complainant along with staff proceeded towards pointed place, when at about 1245 hours complainant reached at Kachi Sarak Sao Santer chodagi, he saw one person on motorcycle carrying two women was coming, thereafter, one person came out from Sukal Wah armed with double barrel gun, the complainant saw and identified the person who was on motorcycle as Deedar Ali S/O Muhammad Ismail (present applicant) and a person armed with double barrel gun as Gada Hussain S/O Muhammad Ismail both by caste Shaikh R/O Jogi Muhalla Naudero Taluka Ratodero on seeing police party in official dress coming to them, accused Gada Hussain Shaikh fired straight with his gun upon two women which hit them and they fell down on ground, the complainant issued Hakals to stop the vehicle, both persons along with gun fled away on motorcycle towards Kachi Sarak, meanwhile complainant saw both women had died, he shifted both dead bodies to Naudero Hospital where complainant appointed P.C Zahid Hussain and P.C Subgatullah as mashirs and got conducted checkup of both deceased ladies by W.M.O and saw deceased Raheeda sustained fire arm injury upon her chest and was crossed from back side and one fire arm injury on left side of shoulder near armpit blood was oozing, and deceased Shabana sustained fire arm injury upon her chest and was crossed from her back, blood was also oozing, after completing usual formalities and postmortem both dead bodies were handed over to HC Zahid Hussain, thereafter, complainant along with staff returned back at PS and lodged FIR on behalf of State against accused persons to the above effect.
3. Learned counsel for the applicant submits that the applicant is innocent and he has falsely been implicated in this case in order to show their extra efficiency before their high ups; that all P.Ws are police officials and they are subordinate of the complainant; that though the alleged incident has taken place at populated area of village Izzat ji Wandh but no one was attracted nor any individual except chance witness i.e. police personnel; that this is unseen incident, unseen offence and incident has not taken place in the manner as disclosed by the complainant in his FIR and no active role has been attributed to the applicant/accused even the complainant did not disclose the source of information in respect of the alleged incident. Learned counsel for the applicant further states that infact both deceased ladies Raseeda and Shabana were killed by some other persons as prior to this incident the deceased were kidnapped by accused Rafique Narejo and others and such F.I.R was also lodged by co-accused Gada Hussain Shaikh brother of applicant/accused, bearing Crime No. 07/2022, U/s 496-A, 365-B, 457 P.P.C at P.S. Naudaero; that police has refused to record the version of applicant/accused and other legal heirs of deceased, as applicant/accused is real father of deceased Mst. Shabana and brother-in-law of deceased Mst. Rasheeda; that no any specific role has been attributed to the applicant/accused; that during the investigation, the I.O of the case disclosed the names in further statements each Misri Khan, Ali Madad and Ali Dino as informant and their names showing as accused and submitted the challan before the Magistrate, who took cognizance of offence only against accused Gada Hussain and Deedar Ali (present applicant). Lastly he has prayed that the applicant is entitled for grant of bail.
4. On the other hand, learned D.P.G. has submitted that name of the applicant/accused transpires in the F.I.R with specific role in which two innocent deceased ladies lost their live; that police witnesses are good eye-witnesses and have fully implicated the present/applicant in their statements recorded U/S 161 Cr.P.C and ocular version is supported with medical evidence; that offence is heinous one and comes within the prohibitory clause of Section 497 Cr.P.C. He has, therefore, prayed for dismissal of the bail application.
5. Heard learned counsel for the applicant and learned D.P.G. and perused the material available on the record.
6. The Complainant has mentioned in the F.I.R that he received spy information that co-accused Gada Hussain Shaikh along with his brother present applicant is coming to from Naudero to village Izzat ji Wandh on motorcycle to commit murder of his wife Rasheedan Khatoon aged about 27/28 years and his niece Shabana D/O Deedar Ali aged about 17/18 years. Upon receiving such information, he proceeded to the place of incident and saw present applicant/accused carrying two women on motorcycle and his brother co-accused Gada Hussain made straight fires with his gun upon two women which hit them and they fell down on ground, the complainant issued Hakals and tried to stop the accused but they made their escape good along with the gun on the motorcycles.
7. It is well settled principal of law that every accused would be presumed to be blue eyed boy of the law until and unless he may be proved guilty of alleged charge and law cannot be stretched upon in favour of the prosecution particularly at bail stage. Specific role for causing direct firing upon deceased ladies has been attributed to co-accused Gada Hussain, while the role to the applicant/accused has been assigned is that he was carrying two women on bike.
8. One more aspect is that which contribute being a case of further inquiry is that when the police party saw co-accused Gada Hussain coming out of the Sukal Wah with the double barrel gun in his hand to kill these two ladies, with prior spy information received by the officer ought to be more agile in reaching and stopping the crime from taking place. In fact they saw the crime taking place without any effort in the way to stop the accused from firing infact the Hakkals came after the firing had taken place.
9. All these facts transpires from the plain reading of the FIR that the applicant has successfully made out the case of further inquiry in terms of section 497(2) Cr.PC. As for the contention of learned D.P.G that offence is heinous one is concerned, mere heinousness of offence is no ground to withheld the discretion of post arrest bail in favour of an accused, if otherwise he becomes entitled to bail. No useful purpose would be served by keeping him behind the bars, thus his further incarceration would not serve any beneficial purpose at this stage. On legal position, the case of applicant comes within the ambit of further inquiry in terms of Section 497(2) Cr.P.C, therefore, he was admitted on bail subject to furnishing solvent surety in the sum of Rs.200,000/- (Rupees Two Lac only) and P.R bond in the like amount to the satisfaction of learned trial court vide short order dated 29.07.2022, these are the reasons for the same.
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, prejudice the case of either party before the trial court.
J U D G E
Abdul Salam/P.A