†† IN THE HIGH COURT OF SINDH BENCH AT SUKKUR

 

Crl. Bail Application No.S-193 of 2022

††

DATE OF

HEARING

 

ORDER WITH SIGNATURE OF JUDGE

 

For hearing of bail application

 

 

 

Date of hearing ††† †††††20.03.2023

 

 

Mr. Shabir Ali Bozdar Advocates for applicants.

Mr. Ali Amir Shah, Advocate for complainant.

Mr. Khalil Ahmed Maitlo Deputy Prosecution General for State.

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††††††††††† †††††††††††††††††††††† ††††††††††† O R D E R

 

ABDUL MOBEEN LAKHO, J:†† ††††††††† Through instant bail application, applicants/accused Ghulam Hussain and Manzoor Ali both sons of Allahando, Abdul KHalique son of Ladho and Akhtiar Ali son of Manzoor Ali seek pre-arrest bail in Crime No.38/2021 Police Station, Kandiaro district, Naushehro Feroze for offence punishable under Sections 302, 324, 114, 337H(i), 337A(i), F(i), 147, 148, 149, PPC. Earlier their bail application was declined by learned I-Additional Sessions Judge,Naushehro Feroze vide order dated 31.03.2021.

 

2.†††††† Briefly stated in the FIR that on 05.03.2021 at 0800 hours complainant alongwith his brother Nasrullah Solangi were standing at complainantís Otaq and Masjid Sharif accused, namely, Qurban son of Allahando (present applicant), Asghar, Zahid, Manzoor, Ghulam Hussain, Shakeel, Abdul Khalique, Akhtiar along with 4/5 unidentified persons armed with weapons came at the Otaq of complainant. On coming, accused Abdul Khaliqueinstigated others to commit murder, on his instigation accused Qurban Ali inflicted lathi blows on the head of complainantís brother Nasrullah to commit his murder who fell down on the ground while accused Manzoor Solangi hit complainant on his right arm and other parts of body, there also came relatives of complainant namely Imdad Ali and Irshad Ali. The accused Akhtiar and Shakeel Solangi caused butt blows of pistol and back of hatchets to complainantís relative while unknown accused also caused butt, lathi and hatchet blows to the complainant party. In the meanwhile, ††††††††††††co-villagers came there intervened and rescued, the relatives of complainant party took them to the Police Station and after getting treatment letter took them to Govt. hospital and in the way to Nawabshah injured Nasrullah succumbed to his injuries and passed away. Thereafter, they returned dead body to Kandiaro Hospital and after conducting postmortem of dead body; complainant appeared at Police Station and lodged FIR.

 

3.†††††† Learned Counsel for applicant contends that the applicants have falsely been involved in this case by the complainant with malafide intention and ulterior motives; that there is delay of about 13 hours for which no plausible explanation has been furnished; that the applicant party has lodged FIR against complainant party bearing Crime No.50/2021 and this is counter-blast of instant FIR; that the co-accused Ghulam Hussain and others have been granted bail by this Court vide order dated 31.05.2021; however, role attributed against present applicant/accused is almost same with that of co-accused and it is yet to be determined at the trial that who is aggressor and aggressed upon; that vicarious liability is to be seen at the time of trial after recording evidence whether applicant has alleged active role or otherwise; that no overt act has been attributed to the present applicant/accused in the commission of offence; that case has been challaned and applicant is no more required for further investigation. By contending so, he prayed for grant of bail to the applicants/accused. In support of his contentions, he relied upon cases of Sajid Hussain alias Joji v. The State and another (PLD 2021 Supreme Court 898), Khair Muhammad and another v. The State through P.G. Punjab and another (2021 SCMR 130), Dildar Ahmed v. The State and others (2022 SCMR 264), Liaqat v. The State and another (2011 MLD 1001).

 

4.†††††† As against, Mr. Khalil Ahmed Maitlo, learned Deputy Prosecutor General assisted by Mr. Ali Amir Shah, Advocate for complainant has vehemently opposed for grant of bail to the applicant on the ground that incident took place on broad day light, whereas the accused is co-villager of complainant party, thus there could be no case of mistaken identity; that the intention of the accused was quite clear that he and his companion have entered in the Otaq caused lathi blow at deceased and is preplanned incident; however, the intention and identification cannot be mistaken; that according to postmortem report deceased has received two injuries and as per opinion of Medico-legal officer injuries received to the deceased by hard and blunt substance and both injuries are sufficient to cause death of deceased; that applicant and other co-accused were identified by the complainant party and their names find mention in the FIR with specific role of causing hatchet and lathi blow at deceased; that applicant was available at spot and had participated in the alleged crime; that no enmity has been shown to have false implication of applicant/accused in the commission of crime and he has shared his common intention with co-accused and have facilitated the main accused; that nothing is available on record to show that complainant party had any motive or reason to falsely implicate accused in the case; that deeper appreciation of evidence cannot be permitted at bail stage; that applicant is vicariously liable for the offence; that offence falls within the prohibitory clause of Section 497 Cr.P.C; By contending so, he prayed for rejection of bail. He relied upon case of Amir Faraz v. The State (2023 SCMR 308), Muhammad Baqir v. The State and another (2002SCMR 363), Muhammad Shoaib v. The State and another (2022 SCMR 326).

 

5.†††††† Heard arguments of learned counsel for parties and perused the record.

 

6.†††††† It is settled that in criminal matters, each case has its own peculiar and facts and circumstances and same has to be decided on its own facts. In the present case, the applicant is specifically nominated in the FIR with explicit role who alongwith absconding accused Asghar caused lathi and hatchet blows on the head of deceased Nasrullah and said injury was spelt out from the medical evidence. So far principle of rule of consistency is concerned, although accused Ghulam Hussain and others were granted bail by this Court vide order dated 31.05.2021, the role attributed against them is of instigation and mere presence; however, the role ascribed against present applicant is that he caused lathi injury on the head of deceased which proved fatal and cause his death which too supports postmortem report. In that eventuality, learned counsel for applicant could not satisfy the Court that how the applicantís case is at par to that of co-accused who have already been granted bail by this Court because the lathi injury attributed to the present applicant, on the head of deceased which caused death of deceased. Admittedly, this is a murder case in which an innocent person has lost his life. The contentions of learned counsel for applicant that an FIR bearing Crime No.50/2021 had been registered against complainant party at same police Station and this is counter version case. Bare perusal of FIR of instant Crime shows that it was lodged on 05.03.2021; however, FIR bearing Crime No.50/2021 u/s 337A(i) (v),F(i), 147, 148, 149, 504 PPC lodged by applicant party against complainant party is an afterthought with consultation and due deliberation hence, no tentative findings could be given as to which party is aggressor. The injuries ascribed to the present applicant as well as co-accused Asghar are fully supported by medical evidence/postmortem. According to postmortem report there are two injuries which reads are as under;

 

i.††††††† A lacerated wound vertically situated on mid of occipital parietal region measuring size 8 cm x 1.5 cm x skull bone expose and fractured;

 

ii.†††††† A lacerated wound transversely situated on left side of occipital lobe of head, measuring size 8.5.cm x 1.5 cm x bone exposed and underlying bone fractured;

 

 

The postmortem report clearly depicts that both injuries are contributory towards death of deceased. It has been informed by the counsel for complainant that earlier applicant had filed post-arrest bail application before this Court and same had been withdrawn vide order dated 10.01.2022. Prima facie, the applicant is vicariously liable for the offence committed and had shared the common intention to take life of the deceased. No doubt in the cases cited by the learned Advocate, bail was granted but in each one of them, the facts and circumstances were quite different and thus they were distinguishable. The prosecution witnesses, namely, Imdad Ali and Irshad Ali in their 161 Cr.P.C statements have fully supported the version of complainant stated in the FIR. The offence with which the applicant/accused has been charged falls within the prohibitory clause of Section 497(2) Cr.P.C.

 

In view of above, I am of the considered view that the applicant/accused has failed to make out a case for grant of bail. Accordingly, the bail application is dismissed. However, trial Court is directed to expedite the trial and conclude it within shortest possible time.

 

7.†††††† Needless to mention here that observation made herein above are tentative in nature and trial Court may not be influenced of the same and decide the case on its own merits as per evidence and the material made available before it.

 

 

††††††††† Bail application stands disposed of in the above terms.

 

†††††††††††††††††††††††††††† †††††††††††††††††††††††††††† †††††††††††††††††††††††††††† ††††††††††J U D G E

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

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