Present
Mr. Justice Aqeel Ahmed Abbasi.
Date of hearing : 27.08.2012
Date of order : 27.08.2012
Applicant : Muhammad Sulaiman Balouch & Mureed Balouch through Mr. Muhammad Ashraf Kazi, Advocate
Versus
Complainant : Anwer through Mr. Siraj Ahmed Mangi,
Advocate
Respondent : The State through
Mr. Abdullah Rajput, APG.
Aqeel Ahmed Abbasi, J. Being aggrieved and dis-satisfied with the order dated 26.06.2012 passed by the learned Ist Additional Sessions Judge, Thatta, in bail application No.72 of 2012, whereby the applicants namely Mohammad Sulaiman Balouch and Mureed Balouch, were declined bail. The applicants preferred instant bail application under Section 497 Cr. P.C. seeking bail before this Court.
2. Brief facts as stated in the FIR as follows:-
“ Complainant Anwer Samoon on 22.03.2012 at 1430 hours lodged FIR bearing Crime No.15 of 2012 at police station Makli U/Ss 302, 201, 34 PPC contending therein that on 20.03.2012 accused namely Bachando, Master Sulleman and Mureed all by caste Zangiyani came to their village, asked Muhammad Bachal, brother of the complainant, to accompany them Makli for some work, hence, his brother deceased Muhammad Bachal accompanies them on his motorcycle bearing registration No.AFN-0291 and informed the complainant that he will return in the evening time, however, deceased Muhammad Bachal did not return till night, hence, complainant went to the village of accused Bachando but accused Bachando, Sulleman and Mureed were not available in their village, therefore, complainant returned back to his village and on 21.03.2012 complainant alongwith Arab, Mir Muhammad went to village of accused Bachando Zangiyani where accused were available who were inquired by the complainant about the whereabouts of Muhammad Bachal but they could not furnish any satisfactory reply, therefore, complainant went in search of his brother at Makli and came to know that police had received information regarding presence of dead body at Jungshahi link road Waniyam Shah Sherazi adjacent to the village of Shahoo Mansi. On such information complainant immediately reached at that place where police also arrived and they saw dead body raped in a plastic. The complainant identified the dead body of his brother Muhammad Bachal who was having rope in his neck with rope marks on the neck and injury at the forehead and penis. The dead body was shifted to civil hospital Makli and after post mortem it was handed over to complainant who buried the same, performed funeral ceremony and thereafter went at police station on 22.03.2012 lodged the FIR contending therein that accused Bachando, Sulleman and Mureed have committed murder of his brother Muhammad Bachal.”
Present applicants/accused persons were arrested on 26.03.2012, when their bail before arrest application was declined by the learned trial Court and since then behind the bar. Challan has been submitted and the applicants are facing trial.
3. It is inter alia contended by the learned counsel for applicants that the applicants are innocent and have been falsely implicated in the instant crime. Whereas, neither they have been nominated in the FIR with specific role nor there is any eye witness of the alleged incident. Per learned counsel, on tentative assessment of the FIR and the record available with the prosecution, it may be seen that no incriminating material have been recovered from the present applicants, whereas, as per allegation, the present applicants were last seen with the deceased. Learned counsel has also referred to the Musheernama of the deceased, MLO report and the post-mortem report and statements under Section 161 Cr.P.C. and pointed out the contradiction with regard to the actual time of death and occurrence of incidence. Learned counsel for the applicants further submitted that admittedly, the present applicants did not accompany with the deceased, who allegedly left with co-accused namely Bachando, who is already behind the bar and facing trial, whereas present applicants have been falsely implicated in the instant crime just to cause harassment. Per learned counsel, even the statement of prosecution witness recorded under Section 161 Cr.P.C. does not directly implicate the present applicants with the alleged crime, which is admittedly an un-witnessed crime. Learned counsel further stated that while making tentative assessment the material available on record is to be examined and no order can be passed in vacuum. Per learned counsel, the case of the applicants is of further inquiry, therefore, the applicants may be admitted on bail subject to their furnishing solvent surety. In support of his contention, he has placed reliance in the following case law:-
1. Nazir Ahmed and others v. Muhammad Din and others 1995 SCMR 932
2. Fazal Elahi alias Sajawal v. The Crown PLD 1953 Fed. Court 214
3. Mohammad Akbar Tariq v. The State 1977 P.Cr.L.J 540
4. Nazar Muhammad v. The State 1984 P.Cr.L.J. 1678
5. Darhoon and 4 others v. The State 1984 P.Cr.L.J. 3218
6. Khadim Hussain and another v. The State 1989 P.Cr.L.J. 2432
7. Kishore Kumar and 3 others v. The State 1993 P.Cr.L.J. 55
8. Mudassar Altaf and another v. The State 2010 SCMR 1861
9. Vali Muhammad v. Bajoo and others 1978 SCMR 256
10. Muhammad Hanif v. Manzoor and others 1982 SCMR 153
4. Conversely, learned counsel for the complainant has opposed the grant of bail to the applicants/accused and submitted that since the applicants have been nominated in the instant FIR, whereas recovery of the motorcycle of the deceased Bachal has been effected from co-accused namely Bachando, therefore, the present applicants/accused, who have remained associated in the alleged offence with the co-accused Bachando, are equally responsible for the said offence and bail may not be granted to the accused persons. In support of his contention, he has placed reliance in the following case law:-
1. Pathan and 2 others v. The State 2012 MLD 333
2. Muhammad Ahmed v. The State 2007 YLR 1184
3. Muhammad Yousuf v. The State and another 1986 P.Cr.L.J. 1246
4. Muhammad Afzal v. The State 2012 SCMR 707
5. Kadir Bux alias Porho v. The State 2012 P.Cr.L.J. 690
5. Learned APG while adopting reiterated the arguments of learned counsel for the complainant has also opposed the grant of bail to the present applicants/accused and submitted that only tentative assessment is required to be made at bail stage, whereas, the learned counsel for the present applicants/accused, has made deeper appreciation of evidence which is not permitted at bail stage.
6. I have heard both the learned counsel for the parties as well as learned APG and perused the record. On tentative assessment of the FIR and material available on record, it appears that the present applicants/accused have been nominated in the instant FIR only on the basis of allegations that they were last seen with the deceased Muhammad Bachal. However, from perusal of the contents of the FIR it is seen that the deceased voluntarily left with the co-accused Bachando on his own Motrocyle and not with the present applicants/accused. Record further reveals that at the time of alleged murder of the deceased namely Muhammad Bachal, the present applicants/accused were not seen by any witness including the complainant. No previous enmity or motive has been alleged in the FIR. Challan has been submitted in Court, whereas no recovery of any incriminating material has been effected from the present applicants, which may directly implicate the present applicants/accused with the alleged crime at this stage. The case law relied upon by the learned counsel for applicants are attracted to the case of the applicants/accused, whereas the cases relied upon by the learned counsel for the complainant as well as by learned APG are distinguishable. I am of the view that the applicants have made out a case for grant of bail as the matter requires further inquiry.
7. Accordingly, the applicants/accused are admitted on bail subject to furnishing solvent surety in the sum of Rs.200,000/- (Rupees Two Lacs Only) each with P.R. Bond in the like amount to the satisfaction of the learned trial Court.
8. Needless to observe that the observations made herein are tentative in nature and shall not prejudice the merits of the case which may be examined strictly in accordance with law and on the basis of evidence on record.
9. However, it is clarified that if, the applicants misuse the concession of bail in any manner, the learned trial Court shall be at liberty to proceed against the applicants as per law.
J U D G E
Nadeem