HABIBULLAH Versus State
ORDER
ZAFAR AHMED RAJPUT, J.--- By this common order, I intend to dispose of both above listed bail applications, as the same being arisen out of same crime viz. FIR No. 265 of 2011, register at Police Station Daharki, under Sections 302, 324, 337-H(2), 147, 148, 149, P.P.C., have been heard by me together.
2. Through Criminal Bail Application No. S-774 of 2018, applicant Habibullah son of Pir Bux Dahar and by means of Criminal Bail Application No. S-164 of 2019, applicant Allah Bux alias Rajoo son of Allah Ditto Dahar have sought pre-arrest bail in afore-mentioned Crime/FIR. They earlier applications for grant of pre-arrest bail respectively bearing Nos. 1721 of 2018 and 57 of 2019 were heard and dismissed by the learned Addl. Sessions Judge, Ubauro vide orders dated 01.12.2018 and 15.01.2019. They were admitted to ad-interim bail by this Court vide orders dated 24.12.2018 and 07.03.2019, now the applications are fixed for confirmation of their ad-interim bail or otherwise.
3. Briefly stated facts of the prosecution case are that on 12.09.2011, complainant Ali Asghar Dahar lodged the afore-mentioned FIR, alleging therein that Ali Abbas was his brother, Sajjad Ali son of Noor Hasan was his cousin, Abdul Haleem son of Dodo Dahar and Noor Hasan Dahar was/is his relatives, Noor Hasan and Ali Hasan are his uncles; that they inherited 4-00 acres land in respect thereof a civil suit is pending at Mirpur Mathelo, besides accused Ali Hasan and others filed many cases against the complainant party in the courts and since they had issued them threats to kill them, they (complainant party) shifted from their village to city; that on 11.09.2011 complainant and his above-named relatives were going to their village on motorcycles for taking house hold articles from their house and reached Dahar Wah, village Shahbaz Dahar, at 1200 hours, where Ali Hasan and Muhammad Khan fired with their rifles at Ali Abbas which hit him on his left shoulder and left side of abdomen, Munawar Ali fired with gun at Abdul Haleem which hit him on his left side of abdomen, Allah Bux (applicant in Criminal Bail Application No. S-164 of 2019) fired with pistol at Sajjad Ali which hit him on his head, Habibullah (applicant in Criminal Bail Application No. S-774 of 2018) fired with his rifle at Noor Hasan which hit him on his right shoulder, Mehrab Ali, Anwar, Allah Dino, Saleem made aerial firing in order to create harassment and thereafter, on the cries of complainant party, the accused went away; that Ali Abbas, Sajjad Ali and Abdul Haleem succumbed to injuries on the spot, while Noor Hasan sustained serious injuries who was taken to Daharki Hospital for treatment and after interment of dead bodies, the complainant lodged the FIR.
4. Learned counsel for the applicants has contended that the applicants are innocent and have falsely been implicated in this case; that there is implausible delay of 26 hours in lodging FIR, which is fatal to prosecution case as deliberation and consultation on the part of complainant party cannot be ruled out and any doubt arising in the prosecution case at bail stage, will benefit the accused; that the trial Court has already acquitted co-accused Ali Hasan, Munawar, Muhammad Khan, Saleem and Mehrab by way of compromise vide order dated 28.04.2015 while the case of the applicants was ordered by the trial Court to be kept on dormant file; that the injury allegedly caused by applicant Habibullah is on non-vital part of the body and there is no allegation of repeating the fire with intention of murder; that the applicants were residing in Karachi and thus they had no knowledge of the case; that the parties are already on inimical terms, hence false implication of applicant cannot be ruled out; therefore, the guilt of applicants calls for further inquiry entitling them for the concession of bail. In support of his contentions, learned counsel has relied on the case of Fakeer Muhammad and 2 others v. The State (2007 MLD 340), Sher Alam Khan alias Vakil Khan v. The State and another
(2011 MLD 349) and Mst. Tabassum v. Waqar Hussain and another (2011 MLD 351).
5. On the other hand; learned A.P.G. and learned counsel for the complainant have vehemently opposed these applications on the grounds that the accused in prosecution of their common object committed the alleged murders of three relatives of the complainant by causing them firearms injuries; that applicants are nominated in the FIR with specific roles; that the applicants remained fugitive from law for seven years and did not join the investigation; that the offence alleged falls within the prohibitory clause of section 497, Cr.P.C., therefore, the applicants are not entitled for the bail.
6. I have considered the arguments advanced by the learned counsel for the applicants, complainant and A.P.G. as well as perused the available record with their assistance.
7. Both the applicants are nominated in the FIR by names. Specific role of firing at Noor Hasan and Sajjad Ali has been attributed to applicants Habibullah and Allah Bux, respectively. Noor Hasan sustained injury on his shoulder and Sajjad Ali on his head, the latter succumbed to injury. While Ali Abbas and Abdul Haleem suffered firearms injuries by the hands of co-accused Ali Hasan, Muhammad Khan and Munawar and they also died at the spot; hence, the applicants share the common object. Both the applicants remained fugitive from law by going into hiding for seven years and they surrendered before the Court when some of co-accused earned acquittal by way of compromise. It is now well-settled that fugitive from law and Courts loses some of his normal rights granted by the procedure as well as substantive law and the unexplained abscondence of accused/ applicant disentitles him to the concession of bail, notwithstanding the merits of the case. So far the delay of 26 hours in lodging FIR is concerned; suffice to say that delay in lodging FIR does not make the complainant's case improbable when such delay is properly explained. In the instant case, it may be seen that it is a case of triple murder and it has been stated by the complainant in the FIR that he informed the police on phone about the incident and appeared at police station for lodging FIR after performing funeral ceremony. The question of delay in lodging FIR is to be considered in the background of human factors involved such as the time required by the complainant to come out from anguish and grief. The case-law cited by the learned counsel for the applicant being on distinguishable facts does not advance the case of applicants.
8. From the tentative assessment of the evidence in hands of the prosecution, I am of the view that prima-facie sufficient evidence is available against the applicants to connect them with the commission of alleged offence, carrying punishment for death and imprisonment for life. The counsel for applicants has not been able to point out any special feature of the case entitling the applicants to grant of extra-ordinary concession of pre-arrest bail. Pre-requisites for such concession i.e. malice and ulterior motive, either on the part of complainant or the police are conspicuously missing in the case. Accordingly, both the bail applications are dismissed and the interim orders dated 24.12.2018 and 07.03.2019 stand recalled.
9. Needless to mention here that the observations made hereinabove are tentative in nature and would not influence the trial Court while deciding the case of applicants/accused on merits.
MQ/H-18/Sindh Bail refused.