ORDER SHEET
IN THE HIGH COURT OF SINDH, CIRCUIT COURT, LARKANA.
Cr. Bail Appln. No.S- 521 of 2023.
Date of hearing Order with signature of Judge.
1.For orders on office objection as flag A.
2.For hearing of bail application.
Applicant
(Niaz Muhammad : Through M/S Akeel Ahmed Bhutto and Farooque alias Ahmed Khoso) Ali Bhutto, advocate.
The State : Through Mr. Khalil Ahmed Metlo, Asstt: P.G.
Complainant : Through Mrs.Sarfraz Shahid (Sofia), advocate
(Meer Ahmed) a/w complainant.
Date of hearing : 11.12.2023.
O R D E R.
MUHAMMAD SALEEM JESSAR-J.:-Through instant bail application, applicant Niaz Muhammad @Ahmed Khoso seeks his releasing on post arrest bail in Crime No.30 of 2023 of P.S Lakhi Ghulam Shah, for offences under Sections 302, 324, 396, 397, 427, 148, 149, 337-H(ii) PPC.
2. Briefly the facts of the prosecution case against the present applicants are that on 06.3.2023 at about 1600 hours, complainant Mir Ahmed Brohi had lodged FIR at PS Ghulam Shah, alleging therein that on 05-3-2023 he along with his brothers, namely Muabdullah, Hafiz Shoukat Hussain and Liaquat Ali Bugti were coming to Sukkur from Dera Murad Jamali. It is further alleged that on 06.3.2023, at about 4-00 a.m, they reached near Village Soomar on Jacobabad-Sukkur highway where they saw and identified accused to be Allah Jurio, Niaz Muhammad alias Ahmed and Raja, all by caste Khoso along with two unidentified persons duly armed with K.Ks came on road with intention to commit robbery. It is further alleged that all accused pointed their weapons upon complainant party and Muabdullah tried to accelerate the vehicle which hit to Allah Jurio who in order to commit Qatl-e-amad fired upon Muabdullah which hit him who died on the spot and vehicle was stopped there. It is further alleged that accused Raja Khoso fired upon Liaquat Ali which hit him while accused Niaz Muhammad alias Ahmed Khoso ( ) and unidentified persons fired upon cornplainant party with intention to commit their Qatl-e-amad but Gomplainant and Hafiz Shoukat Hussain saved themselves by lying in the vehicle and fires went through and through door of driver side by crossing the roof. It is further alleged that all accused by seeing the traffic passing by on road, went away towards Western side by making firing. It is further alleged that deceased and injured Liaquat Ali were brought at Taluka Hospital Lakhi Ghulam Shah through the police of PP Jahan Khan where the post-mortem of deceased was conducted while injured Liaquat Ali Bugti was referred to Larkana Hospital. It is further alleged that complainant then taken away the dead body of his deceased brother Muabdullah to his village and then lodged FIR to the above effect.
3. Per record, it appears that applicant was arrested by police on 13.3.2023 and after conclusion of usual formalities, the applicant was found innocent by the police therefore, his name was kept in column No.II of the challan. Such report in terms of Section 173 Cr.P.C was filed by the police before Civil Judge & Judicial Magistrate, Lakhi Ghulam Shah who after scrutinizing the case papers did not concur his opinion with police report, therefore, by taking cognizance of the offence joined the applicant as accused in the case vide order dated 11.3.2023. Later, the I.O submitted charge sheet before the Court having jurisdiction on 08.5.2023. Presently instant case is pending for trial before the Court of 3rd Additional Sessions Judge, Shikarpur vide Sessions Case No.Nil of 2023 re: State v. Allah Jurrio Khoso and others. The applicant preferred his bail plea before the court of Sessions which subsequently was assigned to the trial Court. The trial Court after hearing the parties has dismissed the bail application through its order dated 26.8.2023, hence this bail application has been maintained.
4. Learned counsel submits that the applicant is retired government servant as he was appointed in Education and Literacy Department Sindh as Chowkidar and per his service card his date of birth is 01.9.1955. He bears CNIC vide No.43303-7691267-5. He further submits that that during investigation, applicant was found innocent, therefore, his name was kept in column No.II of the challan, however, learned Judicial Magistrate concerned did not concur his opinion with the police report, therefore, has joined him as an accused. He further submits that the applicant is a person of advanced age. Besides he is a cardio patient. In support of his contentions he also submits copy OPD Slip issued by NICVD Sukkur, taken on record. He further submits that role assigned to the applicant is that he allegedly fired which hit to vehicle belonging to the complainant party and bullet went through and through. However, no injury has been alleged to have caused by him to any P.W or deceased. He further submits that it is amazing that at the moment when alleged occurrence took place particularly in odd hours of the night the complainant has not only identified him but has also nominated him in the FIR with full particulars including parentage. He submits that case against him requires further enquiry, therefore, he may be enlarged on bail. In support of his contention, he places his reliance upon the cases reported as under:
i. Ghulam Mujtaba Qadri v. The State and others (2012 SCMR 662).
ii. Muhammad Irfan v. The State and others (2014 SCMR 1347).
iii. Muhammad Shakeel v. The State and others (PLD 2014 S.C 458).
iv. Sharif Khan v. The State and another (2021 SCMR 87).
v. Sheraz v. The State (2021 MLD 292)
vi. Muhammad Aslam v. The State and another (2023 YLR Note 29).
vii. Mushtaq Ahmad v. The State and another (2012 YLR 1101).
5. Mr. Khalil Ahmed Metlo, Asstt: P.G appearing for the State opposed the bail application on the ground that the applicant is nominated in the FIR. Besides, he has been assigned role of causing fire which failed and hit to vehicle, therefore, he is not entitled for the bail. He however, could not controvert the fact that no injury has been assigned to the applicant with regard to injured or deceased at the time of occurrence. Besides, he was let off by the police during investigation.
6. Learned counsel for the complainant also opposes bail application on the ground that applicant as well as complainant party are residing within same vicinity and are known to each other, therefore, he was identified by the complainant at the time of alleged occurrence, hence applicant is not entitled to bail. She, however, could not controvert the fact that applicant was found innocent during investigation.
7. No doubt the applicant is nominated in the FIR, however, he has not been assigned any specific role of causing injury to P.W or deceased. The main role of causing fatal shot injury to deceased Muabdullah is assigned to co-accused Allah Jurrio who alongwith other accused has been arrested and they are facing trial.
8. During investigation, the applicant was found innocent by the police, therefore, his name was kept in column No.II of the challan. However, latter he was joined by the Judicial Magistrate to whom report under Section 173 Cr.P.C was filed. By placing the applicant under column No.II of the challan, the prosecution itself has dented its own case rather has made it the case of two versions. In such event, the version given by the complainant in his FIR is correct or the version put forth by the I.O during investigation is correct, is a question which is yet to be determined by the trial Court after recording evidence of the parties.
9. In view of above, I am of the opinion that accusation against the applicant requires further enquiry. Consequently, instant bail application is hereby allowed. Applicant shall be released on bail subject to furnishing solvent surety in the sum of Rs.300,000/= and P.R bond in the like amount to the satisfaction of trial Court.
10. Needless to say that observations made hereinabove are tentative in nature for disposal of instant bail application only which shall not prejudice the case of either party while deciding fate of the case by the trial Court at the time of trial.
JUDGE
Shabir