ORDER SHEET
IN THE HIGH COURT OF SINDH,
CIRCUIT COURT, HYDERABAD.
Cr.Bail.Appl.No.S- 324 of 2014
DATE ORDER WITH SIGNATURE OF JUDGE
Date of hearing: 05.12.2014.
Date of order: 05.12. 20.14.
Mr. Ayaz Hussain Tunio, Advocate for the applicant.
Mr. Omparkash Advocate for the complainant
Syed Meeral Shah Deputy Prosecutor General Sindh.
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SALAHUDDIN PANHWAR, J: Through instant application, applicant seeks pre arrest bail in Crime No.168/2013 of P.S. Kazi Ahmed District Shaheed Benazirabad u/s 302,324, 337 H(ii), 147, 148, 504 PPC.
2. Precisely, relevant facts are that on 25.08.2012 at 10.00 a.m complainant Khamiso Khoso lodged FIR at P.S. Kazi Ahmed stating that there is an old blood feud with Khamiso Khan Chandio and others. On last day, complainant along-with his son Soomar Khan, brother Mukhtiar and grandson Juman had gone to their land, where Khamiso Khan armed with Kalashankov, his son Abdul Shakoor and Sanaullah with pistols, Kaloo with gun and one unknown with KK, emerged and while abusing, caused firing upon them; in order to save themselves, they ran towards village Sohrab Jatoi but accused persons chased them and accused Khamiso Chandio fired upon Soomar Khan, which hit him on his right side of chest, accused Abdul Shakoor fired at Soomar Khan, which hit on his right side of forehead and he fell down while raising cries. Thereafter accused persons decamped on their motorcycle. The complainant noticed that Soomar Khan had received firearm injuries and expired at the spot. They informed the police and shifted dead body to the hospital for postmortem. After postmortem and burial, complainant lodged FIR.
3. Learned counsel for applicant, inter alia, contended that applicant/accused is innocent and has been falsely involved in this case due to enmity, which is admitted in the FIR; FIR is delayed by 22 hours without any plausible explanation; that this FIR has been registered to trepidation the accused persons and to deter them from prosecuting S.C. No.394/2012 bearing crime No.37/2012 of P.S. Kazi Ahmed filed by co-accused Sanaullah regarding murder of his father in which the applicant Khamiso and his nephews are witnesses; deceased was involved in series of heinous crimes and was a proclaimed offender; prosecution story is not believable; during investigation independent persons of locality were examined by the I.O. whereby applicant was let off; applicant is old aged person of about 60 years of age, suffering from diabetes and heart problems, and thus his detention in jail will be detrimental to his life. This is a fit case of further inquiry as police conducted spot inquiry before lodgment of FIR. In support of his contention he has relied upon pld 1995 sc 34, 1195 SCMR 127, 1992 P.Cr.L.J 1910, PLD 1998 SC 194, 2000 PCRLJ 797, 2012 SCMR 1137.
4. Conversely, learned counsel for complainant and learned D.P.G opposed this bail application and contended that applicant is nominated in FIR with specific role of causing firearm injury to deceased Soomar Khan, who died at the spot; that the I.O. had not conducted impartial investigation and at the instance of accused persons let off the applicant but the concerned Magistrate disagreed with such opinion and joined the applicant as an accused; that there is sufficient evidence available on record connecting the applicant with commission of offence; ipsi dixit of police is not binding upon this court; this is not a exceptional case where this court can extend the extra ordinary relief; therefore he is not entitled for concession of pre arrest bail. He has relied upon 1988PCRLJ 248, 2008 YLR 11, 1988 PCRLJ 468, 1982 PCRLJ 1274, 2010 SCMR , 2010 SCMR 1762
5. I have heard learned counsel for the parties and perused the material available on record. Perusal of the record reveals that applicant is nominated in the FIR with active participation in commission of offence of murder of deceased Soomar Khan. According to the prosecution, applicant/accused caused firearm injury to deceased Soomar on his chest and also shared his common intention with co-accused in commission of his murder. The alleged offence has taken place 12.30 pm (noon time), in broad day light, therefore, there is no question of mistaken identity. The injury caused by the applicant to the deceased Soomar proved fatal and he expired instantly. So far the delay in lodging FIR is concerned, suffice to say that delay per se is not sufficient to extend the concession of bail, albeit such aspect can be considered coupled with other material collected by prosecution at relevant stage; Pws in their statements u/s 161 Cr.P.C. have supported the version of complainant, it appears that there is sufficient evidence connecting the applicant with commission of offence. It is never the character of the deceased which could justify claim of any concession for the accused because character of a person would not let one to play the role of ‘judge’. As regard the ground of old age it would suffice to say that mere old age is not a ground to entitle one for concession of bail particularly while claiming the extra ordinary concession of pre-arrest bail the accused has to show sufficient material to justify his arrest to be result of some malafide. The ground of old enmity, being double edged weapon will also not help the accused more particularly where the fatal injury on person of the deceased is attributed against the applicant/accused. The status of the witnesses of independent, in fact, is the stance of the accused party which should be taken as defence. Since while deciding the bail plea it is not the case of the defence through which the ‘further inquiry’ creeps but it is the prosecution case in which dent/room of further inquiry is to be made by accused.
6. Besides , it is well settled law that for grant of pre arrest bail, applicant has to show malafide intention and ulterior motives on the part of the complainant or police to cause unjustified harassment and arrest of accused tainted with malafide for the purpose of humiliation and malicious prosecution to him. In the instant case, no malafide has been attributed to the police. The applicant is involved in heinous offence of murder and applicant has been assigned specific role of causing injuries to the deceased Soomar Khan, who expired at the spot. No doubt applicant was let off by the police and his name was kept in column No.2 of the challan but concerned Magistrate disagreed with such report. It is settled principle of law that ipsi dixit of police is not binding upon the court while deciding the bail application(s).
6. In view of the above facts and circumstances, I am of the view that
applicant Khamiso has failed to make out case for extra ordinary relief of pre arrest bail, therefore, his interim pre arrest bail was recalled and the instant bail application was dismissed by short order dated 05.12.2014.
7. Needles to mention here that observation made hereinabove is tentative in nature and thus will not prejudice the case of either party in trial.
JUDGE
A.K