ORDER SHEET

IN THE HIGH COURT OF SINDH, CIRCUIT COURT LARKANA

Crl. Bail Appln. No. 110 of 2010.

Date	Order with signature of Judge

For hearing.

08.06.2010.

Mr. Sarfraz Khan Jatoi, Advocate for applicant.

Mr. Azizul Haq Solangi, Asst. A.G.

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Applicant Faqir Mohammad seeks post arrest bail in crime No. 31/2008, of P.S Garhi Hassan, registered under section 302, 34, 147, 148, 149 P.P.C.

The facts of the case are that on 10.11.2008; complainant Barkat Ali Sarki lodged an F.I.R bearing No. 31/2008, at P.S Garhi Hassan, with the following details:

“It is complained that deceased Mohammad Bux alias Keko is my cousin. I reside at above address, alongwith my brother Mohammad Nawaz and relative Dhani Bux son of Hussain Bux and Cousin Mohammad Bux alias Keko. There is long standing murderous enmity between accused Faqir Mohammad and my cousin Keko. Accused Faqir Mohammad usually sends messages that he shall retaliate the murder. Today my brother Mohammad Nawaz, cousin Mohammad Bux alias Keko, relative Dhani Bux and I left our house for agricultural lands. It was about 11.00 a.m. when we reached near “Dera” of Sardar Zulfiqar Ali Sarki, we saw that five accused persons with open faces were standing near “Dera” at road side nearby their two motorcycles were standing. Out of them we identified three accused, namely, Faqir Mohammad armed with kalashnikov, Mullan Dostan armed with T.T pistol, Khuda Bux armed with gun, and two unidentified persons with open faces, who were seen clearly by us were armed with kalashnikoves. Accused Faqir Mohammad gave hakal to my cousin Mohammad Bux alias Keko and said “you have already killed our men, today we shall kill you in revenge”, so he fired from kalashnikov at cousin Mohammad Bux alias Kekoo, which hit him at his chest on right side. The unidentified accused had pointed their weapons being empty handed and fear of life we remained silent. Accused Mullan Dostan fired from his pistol at my cousin Mohammad Bux alias Kekoo, which hit him at his chest on left side and accused Khuda Bux fired from his gun at Mohammad Bux alias Kekoo, which hit him at his loin on left side and he fell down on the ground by raising cries. Accused also caused aerial firing to crate harassment to us and went away on motorcycles towards north. We saw my cousin Mohammad Bux alias Kekoo sustained injuries on his right side chest through and through on the back side and so also left side. He heaved his last breath in our presence. Thereafter, I arranged conveyance and took the corpse of deceased and complain that the above named accused in furtherance of their common intention, duly armed with weapons above three nominated accused directly fired at my cousin Mohammad Bux alias Kekoo and unidentified persons pointed their weapons and caused harassment to us. I am complainant, investigation be made.”

Prior to this bail application, the applicant was granted protective bail on 07.05.2009 by this Court, thereafter the applicant surrendered before Court of Sessions Judge, Jacobabad, for seeing pre arrest bail but the same was declined. Then the applicant approached to this Court for seeing pre arrest bail; this Court granted interim pre arrest bail to applicant, but declined to confirm the same. The applicant was taken into custody. Thereafter the applicant sought bail after arrest, which was declined by learned Session Judge, Jacobabad, vide impugned order dated 07.01.2010, and after that the applicant has filed present bail application.

Learned counsel for the applicant contended that prima facie there is no case against the applicant, as after registration of F.I.R police had carried out investigation and recommended the case to be disposed of under “B” class and submitted such report under section 173 Cr.P.C. but the District Public Prosecutor did not agree with the police report and in his submission note directed investigating officer to submit challan against the accused before the Court of law to face the trial. It was further submitted by learned counsel for applicant that the challan of the case has been sent up for trial before the Sessions Judge, Jacobabad, wherein the applicant is shown as absconder. The learned counsel for the applicant further contended that the applicant has been involved in the case falsely due to enmity by the complainant as the applicant is police personnel. Learned counsel for applicant has relied upon 1992 SCMR 1955, 2002 SCMR 63, 2002 P.Cr.L.J 220, 2003 NLR Criminal 57, 2000 P.Cr.L.J 520, 2006 P.Cr.L.J 1212, 1991 MLD 2564, 2002 P.Cr.L.J 494 and PLD 2003 Karachi 309. The case law cited by the learned counsel for the applicant contains distinguishable fats and legal grounds.

On the other hand learned Asstt. A.G. has vehemently opposed grant of bail, on the ground that the applicant has been nominated in F.I.R with specific role of firing at deceased.

Perusal of record shows that the applicant has been nominated by name in the F.I.R. Specific role of making fire upon deceased has been assigned to him. The prosecution witnesses identified the applicant/ accused at the time of commission of crime. There is no inordinate delay in lodging of F.I.R. The eyewitnesses Dhani Bux and Mohammad Nawaz Sarki recorded their statements, who supported version of the complainant. The police in the challan sheet has supported the accused persons and totally blackout and suppressed the statements of the complainant and eyewitnesses.

After going through the F.I.R, statements of eyewitnesses and police papers, it appears that there are reasonable grounds to believe that the applicant/ accused is guilty of the offence with which he is charged, therefore, I find no case for release of the applicant on bail, the present bail application is therefore rejected.

Since the applicant is A.S.I of police, therefore, it appears that the police officials who submitted the challan have tried to favor him. The case has been challaned on 02.04.2009 and is pending in the Court of learned Sessions Judge, Jacobabad, I therefore direct learned Sessions Judge, Jacobabad, to appoint some well reputed police officer to re-investigate the matter and submit such report of re-investigation to the trial Court.

Judge