ORDER SHEET

IN THE HIGH COURT OF SINDH, CIRCUIT COURT LARKANA

Crl. Bail Appln. No. 490 of 2009.

Date	Order with signature of Judge

For hearing.

07.10.2009.

                        Mr. Altaf Hussain Surahyo Advocate for applicants.

                        Mr. Mohammad Yaqoub Dahani, State counsel.

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                        Applicants seek bail application in crime No.69/2005, under section 69/2005, under section 302, 324, 34 P.P.C.

                        The allegations precisely against applicants in the F.I.R appears to be that complainant Mohammad Hayat, his brother deceased Abdul Latif and nephew Deedar Ali were present in their house, when applicants Sukhyo, Abdul Qadir and Mahkumuddin came there. Accused Sukhyo and Mahkumuddin (present applicants) had guns, while Abdul Qadir had lathi. Accused Sukhyo abused and stated that since they have killed his cousin Dilbar, therefore, they will not be spared. Consequently Sukhyo fired from his gun upon the complainant party to commit their murder, which hit complainant who fell on the ground while rest of the accused caused brick and lathi blows to complainant’s brother Abdul Latif, who died on spot having injury at right temple.

                        Learned counsel for the applicants has contended that both the star witnesses named in the F.I.R viz. Mohammad Hayat the complainant himself as well as Deedar Ali were examined on 20^th November, 2007, who did not name any of the accused person; on the contrary they have stated that three culprits with muffled faces armed with guns and lathis fired upon the complainant and caused death of Abdul Latif. In cross-examination they have admitted giving of name of the present applicants in the F.I.R but have stated that it were given due to previous matrimonial enmity and under suspicion.  It was therefore contended by the learned counsel that since on the basis of evidence adduced, the applications cannot be convicted, therefore,  at-least they are entitled to the concession of bail at this juncture and in support of his contention reliance has been placed on the case of Zahid Khan v. The State (1999 Cr. L. J 35) and case of Ishfaque Ahmed v. Mohammad Azam (2007 SCMR 1254), on the point that where the eyewitnesses have not supported allegations leveled in the F.I.R, then unless witnesses are declared as hostile, it entitles the accused to concession of bail. It was lastly contended that in counter case bearing crime No. 68/2005, under section 302, 337-A (ii), 34 P.P.C. filed by the accused persons regarding the same incident in similar circumstances bail was granted to complainant party.

                        On the other hand learned State counsel keeping in view that both the eyewitnesses named in the F.I.R have not stood by their earlier statements, has not opposed the grant of bail, but has stated that since the applicants had remained absconders, therefore, heavy surety may be directed.

                        I have heard the learned counsel for the respective parties and have perused the record. 

                        Perusal of the F.I.R reflects that both the accused persons have specifically been named in the F.I.R with roles assigned to them. However, upon being examined in Court both the star witnesses i.e. complainant and another witness named in F.I.R have resiled from their earlier statements by stating that the contents of F.I.R were not read over to them and they had named applicants/ accused on the ground of suspicion as they had some matrimonial dispute.  This aspect of the case was not touched by the trial Court while deciding bail application on the ground that since the applicants remained absconders, therefore, have lost some of their rights and cannot be granted bail.

            After going through the evidence of the complainant and the other eyewitness, the chance applicants being convicted for the offence charged appeared to be remote, therefore, the concession bail cannot be withheld to the applicants/ accused only because they have remained absconders especially when the members of the complainant party were admitted to bail in the counter case filed by applicant Sukhyo being crime No. 68/2005, under section 302, 337-A (ii), 34 P.P.C. However as rightly pointed by the State counsel that such apprehension can be taken care of by directing surety for substantial amount.

                        For above reasons I admit the applicants/ accused to bail upon furnishing solvent surety in the sum of Rs.400,000/- (Four lacs) each and P.R bond in the like amount to the satisfaction of trial Court.

                                                                                                            Judge