ORDER SHEET

IN THE HIGH COURT OF SINDH,

CIRCUIT COURT, HYDERABAD.

Cr.B.A.No.S- 170 of  2010

           

DATE         ORDER WITH SIGNATURE OF JUDGE

 

                        1. For orders on MA 746/2010.

                        2. For hearing.

 

Date of hearing:            17.5.2010.

 

Date of order:              

 

Mr. Ali Muhammad Dahri, Advocate for applicants.

Mr. Ishrat Ali Lohar, Advocate for complainant.

Syed Meeral Shah, D.P.G.

                        =

 

AQEEL AHMED ABBASI, J-        On being aggrieved and dissatisfied by the order dated 5.1.2010 passed by learned IIIrd Additional Sessions Judge, Shaheed Benazirabad on bail application in Sessions Case No.33 of 2008, Crime No.114 of 2007 registered at P.S Daur U/s 302, 148, 149 P.P.C., whereby the bail to the present applicants has been declined. The present applicants have preferred the instant bail application.

                        The allegations against the present applicants/accused as contained in the F.I.R. lodged by complainant Rahimdad on 30.12.2007 at 1130 hours, are as follows:-

“It is complained that I am Hari and reside in village Jalal Peer, Deh 75-Nusrat alongwith my family members. We are five brothers. I and my brother Muhammad Ayoob aged about 40 years reside together and remaining three brothers Manzoor (2) Mumtaz and Hakim are residing together. About four months ago my brother Manzoor has gone to Saudi Arabia for work. Meeral s/o Mahewal Deenari are our caste fellow who previously were residing in village Bashir Punjabi and about two months ago they have shifted to village Bashir Ahmed Shah. About five months ago, my brother Manzoor was going to meet with his friends and Meeral and others way led my brother Manzoor and asked him that in future he should not pass from said way. Today I and my brother Muhammad Ayoob after eating night meal went to sleep in our house alongwith family members. Our house is surrounded by hedge having entrance towards Southern side. At about 1230 A.M (night) I heard fire report and cry of my brother Muhammad Ayoob and saw on the torch light that accused namely Meeral s/o Mahewal Deenari having pistol in his hand (2) Sheral s/o Mahewal having pistol in his hand (3) Bashir s/o Mahewal having pistol in his hand (4) Gul Baig s/o Mahewal having gun in his hand (5) Meer Hassan s/o Muhammad Juman Deenari r/o village Muhammad Bux Deenari Deh 78-Nusrat having pistol in his hand and by his seeing Meeral fired from pistol and Gul Baig fired from gun at his brother Muhammad Ayoob sleeping on cot which hit him and he raised cry. Then I raised cries and on my cries and fire reports, my maternal uncle Khadim Hussain s/o Wassan Khan Deenari (2) my brother Mumtaz and other village people came running who also saw above persons and on the torch light I saw two unknown persons having guns were standing outside our house and above witnesses also seen them very well and will recognize if seen again. Then all persons alongwith their weapons ran towards road where one Datsun was standing and all those persons boarded in it and went towards Nawabshah. Then we saw my brother Muhammad Ayoub was having fire over the nipple on right side and bleeding who died within our sight. Then leaving the witnesses over the dead body, I came over here and am complaining that Meeral, Gul Baig and other accused with their common consultation due to suspicious of allegation of Karo have fired from pistol and gun and murdered my brother Muhammad Ayoub. I am complainant, investigation be conducted.”

 

                        After usual investigation, interim Challan was submitted on 8.3.2008 wherein both the present applicants/accused were shown as absconders. Whereafter, final Challan U/s 170/173 Cr.P.C was also submitted in Court wherein co-accused namely Mir Hassan was shown as arrested whereas the present applicants alongwith two remaining co-accused have been shown as absconders.

                        It is contended by learned counsel for the applicants/accused that date of occurrence as mentioned in the F.I.R. is 30.12.2007 and time of occurrence has been shown as 1130 hours whereas F.I.R. has been registered on 31.12.2007 at 0030 hours hence there is delay in lodging the F.I.R. The learned counsel further stated that charge has not yet been framed whereas the present applicants surrendered themselves before the trial Court on 1.1.2010 and filed the pre-arrest bail application which was converted into bail after arrest on the endorsement made by the learned counsel for the applicants/accused on 4.1.2010 and accused were remanded to jail custody and thereafter, applicants/accused have been declined bail by the learned trial Court vide order dated 5.1.2010. The learned counsel states that this is a case of further inquiry wherein it is yet to be determined as to who has caused fatal injuries to the deceased. The learned counsel further referred to statements of PWs recorded U/s 164 Cr.P.C on 13.2.2008 after a lapse of about one and half months. He further stated that no recovery has been affected from the present applicants/accused whereas only one empty of pistol is alleged to have been recovered from the crime scene. Learned counsel further states that there is no motive as per contents of the F.I.R. He further referred to the postmortem report available at Page 79-81 to show that there is only one fire arm injury of pistol on the body of deceased whereas as per allegations contained in the F.I.R. there were five armed persons, four in possession of pistols and one in possession of gun, whereas cause of death appears to be on account of one bullet injury fired from the pistol. Learned counsel argued that these factors entitle the applicants for concession of bail. The learned counsel further argued that in view of the rule of consistency also the applicants are entitled for concession of bail on the ground that co-accused namely Sheral Dennari has been granted bail by the learned trial Court whereas the present applicants have wrongly been declined bail. In support of his arguments, the learned counsel has placed reliance on the following cases:-

1.                  Abdul Aziz Vs. The State (2007 P.Cr.L.J 1020).

2.                  Mehar and another Vs. The State (2000 P.Cr.L.J 1178).

3.                  Fakeer Muhammad and 2 others Vs. The State (2007 MLD 340).

4.                  Gohar Ali and another Vs. The State (2000 P.Cr.L.J 1052).

5.                  Abdul Sattar and another Vs. The State (2009 P.Cr.L.J 575).

6.                  Shafi Muhammad Vs. The State (2002 P.Cr.L.J 494).

7.                  Abdullah and 2 others Vs. State (PLJ 2001 Cr.C.(Karachi) 368).

                        Conversely, the learned counsel for complainant vehemently opposed the grant of bail to the present applicants/accused on the ground that there is no delay as alleged by learned counsel for the applicants as only after about one and half hour, the instant F.I.R. was lodged before the concerned Police Station. The learned counsel further argued that case of the present applicants cannot be tested on touch stone of rule of consistency as according to learned counsel, the role assigned to the present applicants is entirely different to that of co-accused who has been granted bail. It is further contended that names of the present applicants/accused have specifically been nominated in the F.I.R. and specific allegations of firing at the deceased persons has been made which is supported by postmortem report which shows bullet injuries on the body of deceased. He further referred to the common intention of the present applicants to commit the instant crime as all of them have been specifically nominated in the instant crime. In view of hereinabove facts, the learned counsel for complainant states that present applicants are not entitled for concession of bail. In this regard, the learned counsel has placed reliance on the following cases:-     

1.                  Muhammad Bashir and others Vs. The State (2004 P.Cr.L.J 1760).

2.                  Rab Nawaz and another Vs. The State and another (2005 P.Cr.L.J 13).

3.                  Muhammad Bashir Vs. The State (2000 SCMR 78).

4.                  Khawaja Noor Vs. Mumtalah Khan and another (2003 YLR 151).

5.                  Azim Khan and others Vs The State (1996 SCMR 1569).

6.                  Ghulam Nabi Vs. The State (1996 SCMR 1023).

7.                  Abdul Hayee and 2 others Vs. The State (1996 SCMR 555).

                        The learned DPG also supports the impugned order as well as the arguments advanced by learned counsel for the complainant.

                        I have heard learned counsel for the parties and perused the record as well as case law referred and relied upon by both the parties.

                        On perusal of contents of F.I.R. and Challan submitted in Court and on tentative assessment of material made available on record, it appears that arguments advanced by learned counsel for the applicants are misconceived and contrary to the facts of the case as neither there is any delay in lodging of the F.I.R. nor rule of consistency is attracted in the case of present applicants who have been nominated and assigned specific role for having fired at the deceased with common intention to commit offence chargeable U/s 302 P.P.C. It further appears that charge could not be framed on account of unexplained absconsion of the present applicants/accused and it has been pointed out by learned DPG that recently the charge has been framed when the accused persons appeared in Court for seeking bail. As regards to the reference to the contents of medicolegal report, the attempt of counsel for applicants to point out the contradictions in the F.I.R. and medicolegal report also appears to be pre-mature as the same requires deeper appreciation of evidence which is yet to be determined in the instant case by the trial Court. Reliance in this regard can be placed on the case of Abdul Hayee and 2 others Vs. The State (1996 SCMR 555). It further appears that applicants/accused having been shown as absconders in the Challan submitted in the trial Court surrendered themselves before the trial Court on 1st January 2010 for seeking pre-arrest bail i.e. after a lapse of about two years of lodging of the F.I.R. without explaining their absconsion. In view of judgments of the Apex Courts, concession of bail cannot be granted to those accused who are fugitive from law when the absconsion remains unexplained. Reliance in this regard can be placed on the case of Azim Khan and others Vs. The State (1996 SCMR 1569).  The case law relied upon by learned counsel for the applicants are distinguishable and not applicable to the instant case.  

                        In view of hereinabove facts and circumstances of the case, I am of the view that counsel for applicants could not make out a case for grant of bail to the applicants/accused who are nominated in the F.I.R. with specific role assigned to them and their implication in the instant F.I.R. could not be considered as baseless or attributed with malafides. On the contrary the ratio of the case law relied upon by learned counsel for the complainant is applicable to the case in hand. The instant bail application is therefore, dismissed alongwith listed application. However, it is clarified that observations made hereinabove are tentative in nature and the learned trial Court shall not be prejudiced from such observations and shall decide the case of present applicants strictly in accordance with law and on the basis of material placed before it. It is expected from the trial Court that case of present applicants/accused shall be proceeded expeditiously keeping in view the directives contained in National Judicial Policy 2009.

 

                                                                                                JUDGE

 

 

Tufail