IN THE HIGH COURT OF SINDH BENCH
AT SUKKUR
Crl. Bail Application No.S-41 of 2022
Crl. Bail Application No.S-43 of 2022
|
DATE
OF HEARING |
ORDER WITH
SIGNATURE OF JUDGE |
1. For orders on
O/objection at flag-A.
2. For hearing of
bail application.
Date
of hearing 20.10.2023
Syed Murad Ali
Shah Advocate for applicants alongwith applicants
(on bail).
Mr. Irshad
Hussain Dharejo, Advocate for complainant.
Mr. Shafi
Muhammad Mahar, Deputy Prosecutor General for State.
***************
O R D E R
ZULFIQAR ALI SANGI, J; Through captioned bail applications
the applicants Shoukat Shah son of Ghulam Shabir Shah alias Koural Shah and Ali
Nawaz son of Hakim Ali Buriro seek pre-arrest bail in Crime No.187/2021 Police Station, Shaheed
Murtaza Mirani for offences punishable under Sections 394 PPC
(in FIR) and 302 PPC (in challan). Earlier their bail application was declined by Additional
Sessions Judge-I /(MCTC), Khairpur
vide
order dated 15.01.2022.
2. The crux of the prosecution case as
unfolded in the FIR are that on 17.07.2021 at about 1900 hours complainant
Ghulam Raza Dharejo lodged FIR at Police
Station, Shaheed Murtaza Mirani stating that on 27.06.2021 he alongwith his
cousin Imam Bux son of Karim Bux Dharejo and nephew Piyaro Khan son of Sikandar
Ali Dharejo were working in their lands his brother Muhammad Panjal on
motorcycle for some work was proceeded and was return back, it was about 1215 a
sound of motorcycle was heard by them and saw four persons on two motorcycles
came behind his brother and reached at Sim Nali and they were robbing the
motorcycles from his brother on which is resisted. They identified accused,
namely, Nawaz son of Hakim Ali Buriro armed with pistol and Shoukat Shah son of
Shabir Shah alias Koural Shah with pistol resident of near Rajpari Taluka
Kotdiji while two unidentified accused, their faces were opened, yet
identified, if seen again. The accused Ali Nawaz made direct fire upon his
brother which hit him on his left arm while accused Shoukat Shah made direct
fire from his pistol which hit him on his left side to which they have hakals,
however, unidentified accused pointed weapons upon them, his brother fell on
ground and all the accused persons boarded on their respective motorcycles run
away towards southern side. Complainant saw his brother Muhammad Panjal was
sustained injuries. He got letter for medical treatment thereafter he appeared
at Police Station and lodged such FIR.
3. Learned
Counsel for the applicant contended that applicants have falsely been implicated by the
complainant with malafide intention and ulterior motives due to
previous enmity over landed property; that applicants have nothing to do with
the alleged offence; that there is 20 days delay in lodging of the FIR for
which no plausible explanation has been furnished by the complainant; that
applicants were arrested on 25.07.2021 thereafter brother of applicant Ali
Nawaz filed application u/s 491 Cr.P.C, and he was released on bail by the
Civil Judge/J.M-I, Khairpur; that incident occurred on open public place but no
any independent person has been cited as witness of the incident which creates
serious doubt in the case of prosecution; that story as alleged in the FIR
appears to be false and fabricated; that as per FIR general allegation of
firing upon deceased is leveled against both
applicants. He further contended that deep scrutiny of evidence is not
permissible, nor it was the requirement of law at bail stage, however, question
could be decided in vacuum as to whether accused are prima facie connected with
the commission of offence or not. By contending so, he prayed for grant of bail.
4. As against, Mr. Shafi
Mohammad Mahar, learned Deputy Prosecutor General assisted
by Mr. Irshad Hussain Dharejo, learned Counsel for complainant vehemently opposed for confirmation
of bail and supported the impugned order passed by learned Additional Sessions
Judge-I
/(MCTC), Khairpur. He also contended that specific
role of firing upon deceased is attributed against present applicants. Delay is
explained as injured was referred to Karachi, however, complainant was with
injured at Hospital at Karachi to save his life. Indeed, on merits, the
applicants are not entitled to bail as they both made straight fires upon
deceased Muhammad Panjal within the sight of complainant who later on died in
hospital and one innocent person has lost his life without any reason/rhyme which
act apparently on face of it is illegal and unlawful. He
submits that learned Magistrate did not discuss the material or giving any
reasoning while granting bail. Lastly, he prayed for dismissing the bail
application. He
relied upon the case of Muhammad Jahangir Khan and others v. The State and
others reported in (2020 SCMR 1270), 2. Shoukat Illahi v. Javed Iqbal and
others (2010 SCMR 966) and 3. Shaukat Hayat v. The State (2010 SCMR 1931)
5. I have
considered the arguments advanced by learned Counsel for parties and have gone
through the record.
6. Perusal of record reflects that
names of present applicants/accused appear in the FIR with
specific role of firing upon deceased Mumtaz Ali. Ali the accused armed with
pistols made direct fires with their pistols upon deceased Muhammad Panjal within
the sight of complainant party which he received on different on his body and they shared common intention in causing the death of deceased and have actively participated in the commission
of offence. During investigation both applicants/accused were arrested
on 25.07.2021 near Sim Nail and crime weapons viz. Pistols and robbed
motorcycle were secured from their possession. No doubt applicant Ali Nawaz was released by
Magistrate but he did not discuss the material available before him nor giving
any reasoning in the Order. Per FIR during robbery the applicant Ali Nawaz made
direct fire upon deceased which hit him on left arm while accused Shoukat Shah
made direct fire from his pistol which hit deceased on left side within the
sight of complainant and as per postmortem report deceased Muhammad Panjal was
occurred due to fire arm injuries, thus the medical cversion is in support of
ocular account. The specific role of straight firing is also against them. The
PWs have fully supported the version of complainant which is further
corroborated by the medical evidence. Thus, prima
facie incident has been committed by
more than one person. From the material available on record I am of the view
that there are reasonable grounds for believing that the applicants are
involved in the case. This Court is conscious of the fact that concept of
pre-arrest bail is an extra-ordinary relief, which is limited to rare cases
based upon trumped-up charges rather it has to be extended sparingly. I am
taking guideline from dictum laid down by the Honourable Supreme Court in case
of Muhammad Jahangir Khan and others v. The State
and others reported in 2020 SCMR 1270 wherein the Honourable
Supreme Court has held that “To avail
such relief, it is obligatory to establish that the prosecution has been
launched, which is based upon malafide, ulterior motives and if it is
materialized, it would certainly cause irreparable loss to his reputation. The
practice to grant ad-interim bail is extension of such a remedy to act as a
shield to protect innocent person facing highhandedness of individuals or
authority against frivolous litigation. Literally speaking the terms ad-interim
is a misnomer as it has fallen in practice”. The offence for which the
applicants/accused have been charged falls within the prohibitory clause of Section
497(2) Cr.P.C.
7. In view of above, I am of the considered view that the applicants/accused have failed to
make out a case for grant of bail. Accordingly, the bail application is
dismissed. Interim
pre-arrest bail already granted to the applicants/accused vide order dated 24.01.2022
is hereby recalled and surety is discharged. Applicants namely, Shoukat Shah
and Ali Nawaz Buriro are present on interim pre-arrest bail, they are taken into custody and remanded to Central
Prison-I Sukkur. Superintendent Central Prison-I, Sukkur is directed to produce
the applicants before learned trial Court on each and every date of hearing.
Copy of this order be sent to the trial Court for information.
Crl. Bail application No.S-41 and 43 of 2022 stand disposed of in the above terms.
J
U D G E
Ihsan/*