ORDER SHEET
IN THE HIGH COURT OF SINDH BENCH AT SUKKUR
Cr.B.A.No.S-204 of 2010
For
hearing
ORDER
07.06.2010
Mr.Ghulam Muhammad Khan Durrani Advocate for
applicant.
Mr.Shyam Lal A.P.G. for the state.
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Applicant
Haji Munir Leghari is facing trial before the court of learned Additional
Sessions Judge Kandiaro in Crime No.385/2008 for falling offence u/s 302, 34 and 403 PPC.
The
prosecution case in emphasize is that Muhamamd Ramzan Brohi is two number
brother of complainant and they are six brothers in all and they have business
of seasonal crop. There was a dispute in between deceased Muhammad Ramzan and
Niaz Muhammad @ Nazu Leghari and dispute was settled between deceased Muhammad
Ramzan and Niaz Muhammad @ Nazu. On the night of 16.11.2008 at
During
investigation police recorded 161 Cr.P.C. statements of the witnesses on
I have
heard the learned counsel for the applicant and Mr.Shyam Lal A.P.G. for the
state and perused the FIR and relevant record available with the bail
application.
Learned
counsel for the applicant argued that this is an un-witnessed incident and only
allegation against the applicant is that the deceased was last seen in company of
the applicant and others. Learned counsel further argued that nothing
incriminating was recovered during investigation. The 161 Cr.P.C. statements of
the witnesses recorded after 8 days of the incident without any plausible
explanation. Learned counsel for the applicant relied upon the case of Gadal
vs. The state 2010 P Cr. L J 280 and contended that the case of the applicant
falls under the purview of Section 497(2) Cr.P.C.
Mr.Shyam
Lal learned A.P.G. for the state argued that the FIR is prompt and witnesses
have supported the contentions of the complainant in 161 Cr.P.C. The police
deliberately in connivance of the applicant/ accused has recorded the statement
u/s 161 Cr.P.C. with the delay of 8 days which cannot be considered at bail
stage. Learned A.P.G. has relied upon the case of Sajid and 2 others vs. The
state 1998 P Cr. L J 1455 and contended that at this stage the applicant does
not deserve grant of bail.
I have
considered submissions advanced at the bar. It is admitted fact that the name
of the applicant do not transpire in the FIR and allegation against the
applicant is of last seen which is to be considered after adducing evidence at
the trial. It is also admitted fact that nothing incriminating was recovered
during investigation from the possession of the applicant. The case of Sajid
and two others supra facts are that the deceased was subjected to carnal
intercourse and the witnesses have seen the deceased lastly in the company of
the applicant/accused and there was no enmity in between the parties to
implicate the applicant. The facts in the case of Gadal supra are that on the
instigation of Gadal accused Barkat Ali fired from his kilashnikove which hit
at Mir Muhammad, who succumbed to the injuries and died at the spot. The case
of Gadal is distinguishable from the facts and circumstances of this case.
However, the case of Sajid and two others
supra relied by the learned A.P.G. for the state are distinguishable
from the facts and circumstances of the case. In the present case allegations
are against Niaz Muhammad @ Nazu that by taken away the deceased with him and
there is no evidence available on record that the deceased was seen lastly in
company of applicant Munir. In these circumstances the case of applicant Nunir
falls under the purview of Section 497(2) Cr.P.C. Hence I grant bail to the
applicant subject to furnishing solvent surety in the sum of Rs.200,000/- (Two
lacs) and P.R. bond in the like amount to the satisfaction of the learned trial
court.
JUDGE