IN THE HIGH COURT OF SINDH BENCH AT SUKKUR

Crl. Bail application No.S-36 of 2022

DATE OF HEARING

ORDER WITH SIGNATURE OF JUDGE.

For hearing of Bail application.

Date of hearing 07.11.2022

M/s Parvez Ali Siyal and Naseem Ahmed Siyal Advocate for applicant alongwith applicant.

Mr. Shoukat Ali Makwal Advocate for complainant.

Mr. Aftab Ahmed Shar Addl.P.G for State.

***************

O R D E R

ABDUL MOBEEN LAKHO, J: Through this bail application, the applicant Mudasir Ali son of Muhammad Ali Kalhoro seeks his admission on pre-arrest bail in Crime No.285/2021 Police Station ‘B’ Section, Khairpur under Sections 302, 201, 342, 376/3, 337J, 109 PPC.

The applicant had filed pre-arrest bail application before the Court of Sessions Judge bearing No.2827/2021, same was assigned to the Court of Additional Sessions Judge-I (MCTC), Khairpur after hearing the parties and the prosecutor vide order dated 04.11.2022 declined to confirm his pre-arrest bail applications. Hence, this bail application.

2. The facts of the prosecution case are mentioned in the FIR attached with the memo of bail application and the same are not to be re-produced in view of the case of Mohammad Shakeel v. The State and others reported as PLD 2014 SC 458.

3. Learned counsel for applicant submits that in fact the deceased Awais Rehman alongwith his companions residing in the Madarsa and on 18.07.2021 the son of complainant left house and disappeared, such information was received by the complainant that some creature has taken away her son in the Canal on receiving such information she alongwith her relatives and other co-villagers rushed towards Canal side where some villagers jumped in the Canal to retrieve the deceased and noted that a big stone was tied with fishing string to his leg; however, the present applicant has no nexus with the alleged tying of stone with fishing string and he has falsely been involved in this case; that complainant filed an application u/s 22-A&B Cr.P.C wherein she has nominated six accused persons. But in FIR she has nominated nine persons including three unidentified persons making it a case of 22-A&B Cr.P.C the name of present applicant does not figure; however, later on his name has been given in FIR with malafide intention and ulterior motives; that all the accused are saddled with the role of Section 109 PPC though the incident is totally unseen and there is no direct evidence against present applicant at all; that co-accused whose names transpire in the FIR have been let-off by the police and their names have been placed in column No.2 of the challan and concerned Magistrate also concur with the report of I.O. vide order dated 10.12.2021, whereas present applicant has been challaned. He next submits that Eleven days delay in lodgment of FIR for which no plausible explanation has been furnished hence, he prayed for confirmation of the bail. In support of his contentions he placed reliance upon the cases of Muhammad Ahmer and 3 others v. The State (2017 P.Crl.J Note 49) and Nawaz Ali Jatt and another v. The State (2002 P.Cr.LJ Note 89).

4. Mr. Aftab Ahmed Shar, learned Additional Prosecutor General appearing for the State assisted by Mr. Shoukat Ali Makwal counsel for the complainant contends that though the DNA of the deceased was conducted but the DNA of the present applicant has not been conducted to suggest and or to connect the present accused with the crime. He further submits that this is unseen incident and there is no direct evidence against present applicant. He submits that there is no civil litigation going in any Court of law between applicant and complainant party against each other, as such applicant is not entitled to extra ordinary relief of pre-arrest bail. He; however, opposed the bail application.

5. Heard, record perused.

6. No doubt, the applicant and other co-accused nominated in the FIR but the FIR is silent as to which of the accused had administered poisonous substance to the deceased. The complainant remained mum for about Eleven days till after burial of the dead body; however, the allegation/role attributed against the present applicant yet to be proved as no one was availability at the place of incident at relevant time. The DNA test of the present applicant has not been conducted to suggest the involvement/and or to connect of the present accused with the crime nor any poison detected when the body was exhumed to ascertain the cause of the death of deceased. The bail application of the applicant was only declined by the trial Court merely mentioning that applicant and co-accused “might” have kidnapped the deceased for committing unnatural offence and then committed his murder and in order to destroy the evidence threw his corpse in Rohri Canal by tying his legs and his body with heavy stone. The above observation of the trial Court where the trial Court while dismissing the bail application used the word “might” is enough to give the benefit of bail to the accused. Thus, without going into further details, I find that the applicant/accused has made out a case of further inquiry keeping in mind the above stated circumstances. Simultaneously, the complainant filed direct complaint against accused Shahzado, Inayatullah, Abdul Qayoom, Zabiullah, Ikramullh and Abdul Wahid whose names have been placed in column No.2 of the challan which is also subjudice before the Court of law. All these factors suggests that the case against present applicant require further inquiry within the meaning of Sub-Section(2) to Section 497 Cr.P.C. The applicant is attending the trial Court regularly, therefore, recalling of interim pre-arrest bail already granted to him, will not serve any useful purpose. Consequently, instant bail application is hereby allowed. The interim pre-arrest bail already granted to the applicant Mudasir Kalhoro vide order dated 26.01.2022 is hereby confirmed on same terms and conditions. As stated above, the applicant present is directed to continue his appearance before trial Court, till final decision of main case.

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

Ihsan/*