IN THE HIGH COURT OF SINDH BENCH AT SUKKUR
Crl. Bail application No.S-36 of 2022
SIGNATURE OF JUDGE.
For hearing of Bail application.
of hearing 07.11.2022
M/s Parvez Ali
Siyal and Naseem Ahmed Siyal Advocate for applicant alongwith applicant.
Ali Makwal Advocate for complainant.
Mr. Aftab Ahmed Shar Addl.P.G for
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,
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
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
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
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.
application stands disposed of in the above terms.
U D G E