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Petitioner: MUKHTIAR AHMED VS Respondent: StateHonorable Justice Muhammad Iqbal MaharMumtaz Alam Leghari
2019 P Cr. L J Note 51 [Sindh (Hyderabad Bench)] Before Muhammad Iqbal Mahar, J MUKHTIAR AHMED---Applicant Versus The STATE---Respondent Criminal Bail Applications Nos. S-671 and S-925 of 2017, heard on 10th April, 2018.
Criminal Procedure Code (V of 1898)---
----Ss. 497 & 498---Penal Code (XLV of 1860), Ss. 302, 337-A(i), 337-F(i), 504, 506(2), 114, 147, 148 & 149---Qatl-i-amd, hurt, insult intended to provoke breach of peace, criminal intimidation, if threat be to cause death or grievous hurt etc., abetment of any offence, if abettor is present when offence is committed, rioting, armed with deadly weapon, unlawful assembly---Bail, confirmation/grant of---Mere role of instigation was attributed to one petitioner/accused while other petitioner was involved in the FIR through further statement of witness---Scope---Complainant had alleged that five accused caused blows, with their respective weapons, to his brother who later succumbed to the injuries---Record revealed that FIR was lodged after four days of the incident---Role of instigation had been alleged against one petitioner but he was declared innocent and was placed in Column No. 2 in the charge sheet---Opinion of the police though not binding on the Court, yet the same could be taken into consideration at bail stage in relevant circumstances, therefore, the case of the petitioner called for the further inquiry---Said petitioner was regularly attending the Trial Court as well and no allegation was against him that he was misusing the concession of interim bail---While name of the other petitioner did not appear in the FIR, rather he was involved in the further statement made by the complainant recorded after eleven days of the incident and after seven days of lodging of the FIR---Said further statement did not show the source of information as the complainant had only stated that he came to know that the petitioner was involved in the present case, therefore, his case required further inquiry as envisaged under S. 497(2), Cr.P.C.---Ad interim pre-attest bail already granted to one petitioner was confirmed and other petitioner was admitted to bail, in circumstances.
Mumtaz Alam Leghari for Applicant.
Saifullah Dasti for the Complainant.
Miss Sana Memon, APG for the State.
Date of hearing: 10th April, 2018.
ORDER
MUHAMMAD IQBAL MAHAR, J.---By this common order, I intend to dispose of captioned bail applications as the same are arising out of Crime No.146/2017. Applicants Abdul Salam and Mukhtiar Ahmed, who have been indicted in above crime for offences under sections 302, 337-A(i), F(i), 506/2, 504, 114, 147, 148, 149, P.P.C., registered at Police Station Shahdadpur, seek pre-arrest and post-arrest bail respectively, after rejection of their bail applications by learned Additional Sessions Judge, Shahdadpur.
2. The facts in nut shell are that on 07.07.2017 complainant Naseer, his brother Lakhadino, Qurban Ali and Farman Ali were sitting at Maldasi chowk. At about 2000 hours accused Salam, Riaz, Shahnawaz, Bhooro and two unknown persons came there on motorcycles. Out of them accused Riaz was armed with hatchet, Shahnawaz with lathi and Bhoro with iron rod. It is alleged that accused Salam instigated others to kill Lakhadino, whereupon the accused persons caused kick, fist, hatchet and lathi blows to him, which hit him and he fell down. On the cries, the villagers came there and saw the accused. Thereafter, accused persons went away on their motorcycles while issuing threats. The complainant party went over Lakhadino and found him sustaining injuries and bleeding. They shifted him to Taluka Hospital Shahdadpur but he was referred to Hyderabad where he succumbed to the injuries on 10.07.2017 at 1700 hours. The complainant took the dead body to Shahdadpur and after postmortem and funeral lodged the FIR.
3. Learned counsel for the applicants contended that applicants/accused are innocent and have falsely been involved in this case by the complainant with mala fide intention; that the prosecution evidence is deeply interested and no person from the village has been cited as witness; that there is unexplained delay of four days in lodging the FIR; that the allegation against applicant Salam is that he instigated others to kill Lakhadino but during investigation, he was found innocent and his name was placed in Col. No.2 of the challan; that the name of applicant Mukhtiar does not appear in the FIR and he was implicated in further statement of complainant after 11 days of the incident, therefore, he submitted that case against the applicants/accused calls for further inquiry and mala fide has been shown, hence they are entitled for confirmation of bail and grant of post arrest bail. In support of his contention learned counsel for the applicants relied upon case of Abid Ali alias Ali v. The State (2011 SCMR 161).
4. As against above, learned APG assisted by learned counsel for the complainant opposed the confirmation of interim bail and grant of post arrest bail on the ground that the name of applicant Salam appears in FIR with specific role of instigation and medical evidence supports the version of complainant, while applicant Mukhtiar has been involved in further statement of the complainant.
5. Heard learned counsel for the parties, learned APG for the State and perused the material available on record.
6. A careful examination of record reflects that the incident has taken place on 07.07.2017 at 2000 hours and the FIR was lodged on 11.07.2017 at 1900 hours after four days of the incident. As per FIR, role of instigation has been alleged against applicant Salam but charge sheet reflects that he was found innocent and his name was placed in Col. No.2 of the challan. No doubt the opinion of police has no binding effect on Courts, yet it a relevant circumstance to be taken into consideration while deciding bail application, therefore, his case calls for further inquiry. Furthermore, the applicant is regularly attending this Court as well as learned trial Court and there is no allegation of misusing the concession of interim bail.
7. Adverting to the case of applicant Mukhtiar, it is mentioned that his name does not appear in FIR but he was involved in further statement made by the complainant after 11 days of the incident and after 7 days of the FIR. The further statement does not show the source of information as the complainant has only stated that he came to know that applicant Mukhtiar is involved in the case, therefore his case also requires further inquiry as envisaged by subsection (2) to section 497, Cr.P.C.
8. For foregoing reasons, I am of the considered view that the applicants/accused have been able to make out a case for confirmation of interim bail and grant of post arrest bail respectively, therefore captioned bail applications are accepted and interim bail granted to applicant Salam on 15.08.2017 is confirmed on same terms and conditions and applicant Mukhtiar is granted post arrest bail subject to his furnishing solvent surety in the sum of Rs. 1,00,000/ (one lac) and P.R bond in the like amount to the satisfaction of learned trial Court.
9. It needs not to iterate that the observations made hereinabove are tentative in nature and may not prejudice the case of either party at the trial.
MQ/M-171/Sindh Bail grante