ALI SHAH Versus State
ORDER
AFTAB AHMED GORAR, J. ---Through instant bail application, applicants/accused Ali Shah and Naeemullah Shah seek pre-arrest bail in Crime No.06/2016 registered at Police Station, Khadehri for offence punishable under sections 302, 324, 452, 114, 147, 148, P.P.C.
2. Brief facts of the prosecution case are that on 28.06.2016 at 1500 hours complainant Mehmood Ali Shah lodged FIR at Police Station, Khadheri stating that he has dispute with Meeral Shah over landed property on which they annoyed. It if further alleged that on 27.06.2016 at 7:30 p.m. complainant along with his brothers Abdul Ghani Shah, Maqsood Shah and maternal-cousin Nizamuddin Shah were available in the house where accused Meeral Shah, Khalil Shah, Hyder Shah, Hizbullah Shah, Ali Shah and Naeemullah Shah forcibly entered into the house, on coming accused Meeral Shah instigated others that they have dispute over landed property with Mehmood Shah and they will not be spared. On his instigation accused Khalil Shah, Hyder Shah and Hizbullah Shah caused lathi injuries to Abdul Ghani Shah while accused Naeemullah Shah caused lathi injuries to complainant. The complainant party gave them Wasta of Allah and Rasool Pak (S.A.W.W.) thereafter accused ran away. Complainant with the help of PW Nizamuddin took injured Abdul Ghani Shah to Civil Hospital Sukkur where he died and after funeral rite complainant lodged FIR against accused persons that accused formed an unlawful assembly and in prosecution of the common object caused murder of his brother Abdul Ghani Shah. Hence, this FIR.
3. Learned Counsel for applicants contends that the applicants have falsely been involved in this case by the complainant with mala fide intention and ulterior motives; that there is delay of 20 hours in lodging of the FIR for which no plausible explanation has been furnished by the complainant; that enmity is admitted in the FIR and parties are closely related and are residing in the same vicinity; that role assigned by applicant Ali Shah has only been shown to be present at wardat and he neither instigated any accused nor he attacked to any of the victim. He further contended that accused Naeemullah Shah did not cause lathi blows to deceased and the allegation against him is that he caused lathi blow to the complainant and the injury sustained by him is declared as simple in nature. He further submits that on merits the present applicants have made out a good case for grant of bail therefore, he prayed for confirmation of bail. He relied upon the case of Mumtaz Hussain and 5 others v. The State (1996 SCMR 1125),
2. Akber Javed v. The State (PLD 2003 Karachi 417),
3. Ali Khan v. The State (2004 MLD 1856)
4. Learned counsel for complainant has opposed for confirmation of bail on the ground that deceased due to serious injuries caused by applicants has died in the hospital during treatment. He submitted that applicants have been nominated in FIR with specific role by the complainant. He further submitted that delay has sufficiently been explained by the complainant. He lastly contended that applicants remained fugitive from law, hence they are not entitled for any relief. He relied upon case of Mst. Ravida v. Amjad and others (2018 SCMR 28) and Mir Afzal Khan v. The State (2011 SCMR 171)
5. Learned Deputy Prosecutor General appearing for the State recorded no objection for confirmation of bail on the ground that injuries received by the complainant at the hands of applicant Naeemullah Shah which has been declared by Medical Officer as simple in nature. He further submits that absconsion will not come in the way to applicants for granting them bail in. this case. He placed reliance upon the case reported in Mitho Pitafi v. The State reported in 2009 SCMR 299.
6. Heard arguments of learned Counsel for the parties and perused the record. Admittedly, there is delay of about 20 hours in lodging the FIR and no plausible explanation has been given by the complainant. Per contents of FIR the role of causing injuries is attributed to co-accused Khalil Shah, Hyder Shah and Hizbullah Shah whereas role of instigation is attributed against co-accused Meeral Shah who has already been granted bail by the learned trial Court, however, applicant/accused Nameemullah Shah has only caused lathi blow to the complainant and the injury sustained by him is not on vital part of the body which has been declared by Medico-legal officer as simple in nature i.e. other hurt. The role assigned to the applicant Ali Shah is of mere his presence at place of incident. There is admitted enmity between the parties over landed property. The case against present applicants is on better footing to that of co-accused Meeral Shah hence, same requires further inquiry as envisaged under section 497(2), Cr.P.C. On merits the applicants have got a good case for further inquiry however, mere absconsion will not come in their way in view of dictum laid down in case of Mitho Pitafi (Supra). The applicants have specifically taken plea in their bail application that after rejection of bail they left the vicinity and hiding themselves in order to save their lives as the applicants were on prime target of the complainant party. The case law relied upon the Counsel for the complainant is distinguishable to the facts and circumstances of the present case. The applicants are regularly attending this Court as well as learned trial Court and there is no allegation of misusing the concession of bail against them therefore, at this stage it would not be proper to recall the interim pre-arrest bail earlier granted to them when there is no allegation of misusing the concession of bail against them. Accordingly, bail application is allowed, interim pre-arrest bail granted to the applicants vide order dated 06.08.2019 is confirmed on same terms and conditions.
7. Needless to say, the observations made hereinabove are tentative in nature and only for the purpose of this bail application. Nothing herein shall affect the determination of the facts at the trial or influence the Trial Court in reaching its decision on merits of the case.
Bail application stand disposed of in the above terms.
ADN/A-149/Sindh Bail confirmed.