Syed DARBAR ALI SHAH and others vs The STATE

ORDER

ASIF SAEED KHAN KHOSA, J.---Through this petition Syed Darbar Ali Shah, Azizullah Sand and Karim Bukhsh Barehar petitioners have sought leave to appeal against the order dated 29-12-2014 passed by a learned Judge-in-Chamber of the High Court of Sindh, Circuit Court, Hyderabad in Criminal Bail Application No, S-1277 of 2014 whereby pre-arrest bail was refused to them in case FIR No, 37 registered at Police Station Nasarpur, District Tando Allahyar on 30-9-2014 in respect of offences under sections 302, 324, 114, 147, 148, 149 and 504, P.P.C. During the investigation section 337-F(i), P.P.C. was added to the FIR.

2. After hearing the learned counsel for the petitioners and the learned Additional Prosecutor- General, Sindh appearing for the State and having gone through the record of the case with their assistance we have observed that the FIR in this case had been lodged after about seventeen and a half hours of the occurrence in issue and the FIR itself showed that it was the complainant party of this case which had gone to the place of occurrence whereat the accused party was already present which factor may react against the allegation of premeditation on the part of the accused party. In the incident in question two persons had died and another had been injured from the side of the complainant party whereas one person had lost his life and two others had received injures on the side of the accused party. We have particularly noticed that dying of one person and sustaining of injures by two others from the side of the accused party had not even been mentioned, in the FIR lodged in the present case and such omission prima facie raises an eyebrow.

Both the parties to this case had come up with their own versions of the same incident and had lodged separate FIRs and it is not disputed that the FIR lodged by the accused party was much prior in time than the FIR lodged by the complainant party. According to the FIR lodged in the present case Syed Darbar Ali Shah petitioner was saddled with the responsibility of raising a lalkara only whereas the injures attributed in the said FIR to Azizullah Sand and Karim Bukhsh Barehar petitioners were opined by a doctor to be attracting the offence under section 337-F(i), P.P.C. which offence is bailable. We have been informed that the investigation of this case has already been finalized and a Challan has been submitted and, thus, physical custody of the petitioners is no longer required at this stage for the purposes of investigation. It may not be out of place to mention here that during the investigation Syed Darbar Ali Shah and Azizullah Sand petitioners had been opined by the local police to be innocent as they were found not to be present at the scene of the crime at the relevant time. In the above mentioned backdrop insistence by the local police upon the petitioners' arrest at such a juncture provides some substance to the assertion of the learned counsel for the petitioners regarding ulterior motives on the part of the local police as well as the complainant party.

3. For what has been discussed above we have found it a fit case for admission of the petitioners to pre-arrest bail. This petition is, therefore, converted into an appeal and the same is allowed and consequently the petitioners are admitted to pre-arrest bail in the above mentioned criminal case subject to furnishing of fresh bail-bonds by them in the sum of Rs, 2,00,000 (Rupees two hundred thousand only) each with one surety each in the like amount to the satisfaction of the learned trial Court within a period of two weeks from today. Upon furnishing of such fresh bail bonds and sureties the earlier bail bonds submitted by the petitioners in pursuance of the order dated 22-1- 2015 shall