HUZOOR BUX KALWAR Versus State
ORDER
KHADIM HUSSAIN M. SHAIKH, J .---Through the captioned bail application, applicant Huzoor Bux son of Gul Muhammad Kalwar has sought pre-arrest bail in the case, emanating from FIR No. 35 of 2019, registered at Police Station Jahan Wah for offence under sections 302, 114, 148, 149, 337-H(2), P.P.C., after his plea for pre-arrest bail has been declined by the learned 1st Additional Sessions Judge, Shikarpur by dismissing his application vide Order dated 09.03.2020.
2. Learned advocate for the applicant has mainly contended that the applicant is innocent and he has been falsely implicated in this case by complainant Mst. Shabiran at the instance of M.P.A Aslam Abro, who is on inimical terms with the applicant on account of dispute between them over the business transactions and property at Karachi; that there is delay of more than five months in lodgment of the FIR without any explanation thereof; that at the very outset, complainant Mst. Shabiran had reported the matter on mobile to the police stating that people of Marfani Tribe have murdered deceased Muhammad Hanif on account of their old murderous enmity vide D.D entry dated 28.07.2019 and name of the present applicant Huzoor Bux was not mentioned therein; that during investigation nine accused including the present applicant were found innocent and their names were placed in column-2 of the challan, but the learned Civil Judge and Judicial Magistrate-V, Shikarpur without considering the material collected during the investigation has joined the accused, whose names were placed in column-2 of the challan; that co-accused Abdul Rasheed, Allah Yar, Ali Haider, Ejaz Ahmed and Gulalai Pathan are on the bail granted to them by the learned Trial Court; and, that the applicant apprehending his arrest with ulterior motives at the hands of police, has sought for pre-arrest bail. The learned counsel prays for confirmation of interim pre-arrest bail earlier granted to the applicant.
3. The learned advocate for the complainant has opposed the grant of bail to the applicant, stating that the name of the applicant is mentioned in the FIR and role of instigation is assigned to him, but he has not be able to controvert any of the contentions of the learned counsel for the applicant.
4. The learned Additional Prosecutor General after going through the police papers has submitted that during the investigation, the present applicant and other 8 co-accused, namely Allah Yar alias Sabir son of Mian Bux Khoso, Ali Haider alias Soobo son of Ghous Bux Khoso, Muhammad Khan son of Sikandar Khoso, Muhammad Umar son of Abdul Rasheed Marfani, Abdul Rasheed son of Sikandar Marfani, Abdul Karim son of Sikandar Marfani, Ejaz Ahmed son of Gul Muhammad Kalwar and Gulalai son of Amanullah Pathan were found innocent, therefore, their names were placed in column-2 of the challan, but the learned Civil Judge and Judicial Magistrate-V, Shikarpur has joined them vide order dated 04.02.2019 and has issued process against them; that the motive was directed against accused Muhammad Umar Marfani, who is assigned the main role of causing firearm injury to deceased Muhammad Hanif, resulting into his death and no motive is alleged against applicant Huzoor Bux Kalwar, who is resident of Karachi, to commit this offence and his name was first time surfaced in the FIR and the statements under section 161, Cr.P.C. of P.Ws after five months of the incident; and, that five co-accused including Abdul Rasheed Marfani, who is father of the main accused Muhammad Umar Marfani have already been granted pre-arrest/post arrest bail by the learned Trial Court. Learned Additional Prosecutor General raises no objection to the confirmation of interim pre-arrest bail already granted to the applicant.
5. I have considered the submissions of the learned counsel for the parties and the learned Additional Prosecutor General and have gone through the material placed on record and the police file with the assistance of the learned Additional Prosecutor General. A perusal of the record would reveal that the incident is shown to have taken place on 28.07.2019 and whereas the FIR was lodged on 31.05.2019 i.e. after more than five months without plausible explanation thereof; admittedly, no motive was directed against the present applicant to commit the alleged offence; co-accused Abdul Rasheed Marfani, the father of main accused Muhammad Umar Marfani, against whom the motive was directed, has already been granted pre-arrest bail and the case of the present applicant seems to be on better footings than that of said co-accused Abdul Rasheed Marfani and whereas other four co-accused namely Allah Yar, Ali Haider, Ejaz Ahmed Kalwar, who happens to be the brother of the present applicant and Gulalai Pathan are also on bail granted to them by the learned trial court, as the present applicant Huzoor Bux and other 8 co-accused were found innocent during the investigation, therefore, their names were placed in column No.2 of the challan; the applicant claims to have been implicated in this case by the complainant party at the instance of M.P.A Aslam Abro due to his dispute over business transactions and the property; and, in view of the inordinate delay of more than five months in lodgment of the FIR false implication of the present applicant in this case cannot be ruled out. Under these circumstances, I am of the considered view that the applicant has made out his case for grant of anticipatory bail. Accordingly, this bail application is allowed and ad-interim pre-arrest bail earlier granted to the applicant vide order dated 12.03.2020 is hereby confirmed on the same terms and conditions.
6. The observations made hereinabove are tentative in nature only for the purpose of deciding the instant bail application, which shall not, in any manner, influence the learned Trial Court at the time of final decision of the subject case.
SA/H-14/Sindh Bail granted.