ORDER SHEET

IN THE HIGH COURT OF SINDH, CIRCUIT COURT, LARKANA.

1^st Cr. Bail Appln. No.S- 273 of 2023.

Date of hearing Order with signature of Judge.

1.For orders on office objection.

2.For hearing of bail application.

Applicants : Abdul Haque & Allah Rakhio, by caste Sunani Buledi, through Mr. Nooruddin Mahessar, Advocate

The State : Through Mr. Ali Anwar Kandhro, Addl. P.G.

Complainant : Through Mr. Rafique Ahmed K. Abro, Advocate

(Muhammad Ilyas)

Date of hearing : 11.12.2023.

O R D E R.

Through this application, applicants seek their release on post arrest bail in Crime No.24 of 2022 registered with P.S Miranpur, under Sections 302, 324, 504, 148, 149, PPC. Such plea of the applicants has been turned down by the learned Additional Sessions Judge-I, Jacobabad vide order dated 28.04.2023.

2. Per available record, the applicants were arrested by the police on 06.8.2022 and after completion of usual formalities challan against them was submitted on 16.08.2022, which is now pending trial before the Court of Additional Sessions Judge-I, Jacobabad vide Sessions Case No.116/2023 re-State v. Allah Rakhio & others.

3. Prosecution case, in brief, is that on 01.08.2022, the applicants along with co-accused, named in the FIR, being armed with KK type Rifles and TT Pistols attacked upon complainant party, wherein co-accused fired at and committed murders of deceased Muhammad Saleem and Mehrab, whereas the applicants caused fire shot injuries to PWs Muhammad Chhuttal and Billand.

4. Pursuant to directions contained in the previous order, trial Court has submitted progress report as well as status of the trial. Before discussing the merits of the case, it will be appropriate to reproduce hereunder concluding paragraph of such progress report, which reads as under:-

“Subsequently on the date of hearings either complaint or his witnesses were absent or one of his witnesses remained in attendance, hence adjournment applications were moved from advocate for accused. However, on majority of date of hearings learned counsel for accused remained absent, therefore, the evidence could not be recorded. Now the case is fixed on 02.12.2023 for evidence. The coercive process in shape of bailable warrants has already been issued for the attendance of complainant and his witnesses. Moreover, both accused are strictly directed to ensure the attendance of their counsel on date of hearing.”

5. Learned Counsel for the applicants submits that there is delay of one day in lodgment of FIR without plausible explanation. He further submits that though applicant Abdul Haque has been nominated in the FIR, however, mere his presence has been shown and no overt act has been assigned to him, whereas so far applicant Allah Rakhio is concerned, he has been assigned the role of causing firearm injury to PW Muhammad Chhuttal, besides, three co-accused have been assigned same role; hence, role against Allah Rakhio is also general in nature and case against the applicant requires further enquiry. He, therefore, submits that applicants may be enlarged on bail. In support of his contentions, he places reliance on the cases reported as Saeed Muhammad Shah v. The State (1993 SCMR 550), Allah Nawaz v. The State (2004 SCMR 1175), Irshad v. The State (2004 PCr.LJ 1246) and Muhammad Hashim Khoso v. The State (2011 PCr.LJ 1580),

5. Learned Addl. P.G. submits that he has no objection for grant of bail to applicant Abdul Haque on account of his mere presence and no role assigned to him; whereas, so far applicant Allah Rakhio is concerned, since he has been attributed specific role of causing firearm injury to PW Muhammad Chhuttal, besides offensive weapon is shown to have been recovered from him on 12.8.2022, therefore, he is not entitled for bail.

6. Learned Counsel for the complainant, when confronted with the observation made by learned trial Court in it’s progress report, submits that the applicants have got registered a false FIR bearing No.14/2023 with PS Miranpur Buriro, u/s 324, 337-F(iii), 337-H(2), 148, 149, PPC, therefore, due to fear of their arrest they could not appear before the trial Court. He opposes the bail application and by placing on record photocopy of said FIR under the cover of his statement of dated 11.12.2023, submits that it is a double murder case, therefore, applicants are not entitled for bail, therefore, prays that by dismissing instant bail application trial Court may be directed to record the evidence of the parties and decide the fate of case within shortest possible time ought to be given by this Court. In support of his contentions, he places his reliance upon the cases reported as Muhammad Aslam v. The State (2010 PCr.LJ 914), Muhammad Ali v. The State (2010 PCr.LJ 1868) and Mulo Ahmed v. The State (2011 MLD 1171).

7. From perusal of the FIR, it appears that parties appear to be co-villagers and they are shown to be on disputed terms over the matter of passage in the village. The main and pivotal role of firing at and causing murders of deceased Muhammad Aslam and Mehrab is assigned to co-accused. So far applicant Allah Rakhio is concerned, active role of making fires along with co-accused and causing injuries to PW Muhammad Chhuttal is assigned to him, therefore, he does not deserve the concession of bail. So far applicant Abdul Haque is concerned, he, though shown armed with KK, is not assigned any overt act in the commission of alleged offence and his mere presence at the relevant time is shown, therefore, his participation in the commission of alleged offence is a matter requiring probe as contemplated under sub-section (2) to Section 497, Cr.P.C.

8. Consequently, instant bail application to the extent of applicant Allah Rakhio is dismissed; whereas same is partly allowed to the extent of applicant Abdul Haque, who is directed to be released on bail subject to his furnishing solvent surety in the sum of Rs.100,000/- (Rupees one hundred thousand only) and P.R Bond in the like amount to the satisfaction of trial Court.

9. The above observations are based on tentative assessment of the material available on record, which shall not influence the trial Court, in any manner, during trial and at the time of final decision of the case.

JUDGE

Qazi Tahir/*