2026 PLP 1083 (YLR)

Amjad Ali Bohio, J.

After the dismissal of Bail Application No. 2554 of 2024 by the learned Additional Sessions Judge-II, Naushahro Feroze, the applicant/accused Khair Muhammad, son of Haji Khan alias Khan Muhammad, by caste Kourejo, resident of Village Sehra, Taluka Moro, District Naushahro Feroze, has filed the instant pre-arrest bail application under Section 498, Cr.P.C. before this Court. The applicant seeks pre-arrest bail in Crime No. 09 of 2024, registered at Police Station Fareed Dero, District Naushahro Feroze, for offences punishable under Sections 302, 324, 147, 148, 149, and 337-H(2), P.P.C.

2. The brief facts of the case, as narrated in the FIR, are that the complainant Dhani Bux, son of Imam Bux Mashoori, by caste Mashoori, resident of Old Jatoi, Taluka Moro, District Naushahro Feroze, lodged FIR No. 09 of 2024 at Police Station Fareed Dero on 14.06.2024 at about 1930 hours. He alleged that a longstanding dispute over jointly irrigated and cultivated agricultural lands had persisted between the complainant's party and accused Gulzar Mashoori along with his associates. On 13.06.2024 at about 2000 hours, the complainant, accompanied by his real brothers Ali Gul (aged about 40 years), Ali Asghar, and their relative Ali Ghulam, was returning from their agricultural lands towards their village. When they reached near the garden of Aqib Khan Jatoi, situated in Deh Fareed Dero, they were allegedly intercepted by a group of armed accused persons. The accused included: Gulzar, armed with a .44-bore rifle; Dildar, armed with a gun both sons of Arbab; Arbab, armed with a Kalashnikov; Javed, armed with a pistol, both sons of Allan; Rajib, son of Gul Hassan, armed with a Kalashnikov; Bakhshal, son of Muhammad Siddique, armed with a Kalashnikoy; Aqeel, son of Bakhshal, armed with a pistol, all residents of Old Jatoi, by caste Mashoori; Khair Muhammad, son of Haji Khan alias Khan Muhammad, by caste Kourejo, resident of Village Sehra, Taluka Moro, armed with a Kalashnikov; and three unidentified persons, armed with pistols, whose identities would be ascertained upon reappearance. It was alleged that accused Gulzar, while issuing threats, declared that the complainant's party would not be spared due to the ongoing land dispute and instigated the others to kill them. On his instigation, Gulzar fired a shot from his rifle at Ali Gul, hitting him on the chest near the nipple. Khair Muhammad allegedly fired his Kalashnikov at Ali Gul, striking his neck, while Arbab also fired at him, hitting the right side of his chest. Furthermore, Bakhshal fired at his right leg, Aqeel at his elbow, Dildar at his right hand, and Rajib fired upon Ali Asghar, hitting him on his back. As a result, Ali Gul and Ali Asghar fell to the ground. Fearing for their lives, the complainant and others took shelter among nearby palm trees. The accused persons then fled the scene while resorting to aerial firing to create panic. The complainant later found his brothers lying injured and, with the help of others, arranged transportation to shift them to Moro Hospital, where Ali Gul succumbed to his injuries en route. Post-mortem examination was conducted at the hospital through police, after which the dead body was handed over to the complainant. Upon completion of the funeral rites, the complainant approached the police and lodged the FIR, alleging that the accused, acting in concert and motivated by a land dispute, intentionally fired upon his brothers, causing the death of Ali Gul and injuries to Ali Asghar.

3. Learned counsel submitted that the applicant/accused had earlier sought interim pre-arrest bail from the learned Sessions Court, which was initially granted. During the period of interim protection, the applicant joined the investigation and furnished material to establish his innocence. Upon such investigation, the Investigating Officer found no incriminating evidence against him and consequently placed his name in Column No. 2 of the challan. However, the learned Magistrate disagreed with the police report and summoned him as an accused. Thereafter, interim pre-arrest bail was again granted to him by the learned Sessions Judge, but the same was subsequently recalled and dismissed by the learned Additional Sessions Judge-II, Naushahro Feroze, vide order dated 18.11.2024. Hence, the present pre-arrest bail application has been filed before this Court. Learned counsel for the applicant/accused Khair Muhammad contended that the applicant, a practicing advocate by profession, has been falsely implicated in the present case owing to enmity and mala fide intention on the part of the complainant. It was argued that the real dispute pertains to agricultural land between the complainant party and co-accused Gulzar and others, who belong to the Mashoori caste, whereas the applicant belongs to an entirely different caste, i.e., Kourejo, and has no concern whatsoever with the said land dispute. Learned counsel submitted that the applicant had earlier represented co-accused Arbab, Gulzar, Javed, and their family members in various criminal and civil matters, which caused animosity and resulted in his false implication in this case. Attention was invited to the fact that during investigation, the applicant was found innocent by the Investigating Officer, who placed his name in Column No. 2 of the challan; however, the learned Magistrate disagreed with the said report and ordered his joining as an accused. It was further argued that no specific or overt act has been attributed to the applicant except a vague allegation of having fired a single shot, which is not supported by any medical evidence suggesting that his act caused injury to anyone. Learned counsel emphasized that the FIR was lodged with an unexplained delay of more than 23 hours, and the prosecution version suffers from material contradictions and inherent improbabilities. Moreover, all cited witnesses are closely related to the complainant, and no independent witness has been produced, thereby rendering the prosecution story doubtful and calling for further inquiry within the meaning of Section 497(2), Cr.P.C. It was also argued that the applicant has fully cooperated with the investigation, has clean antecedents, and that his custodial arrest would serve no lawful purpose. In support of his submissions, learned counsel relied upon the cases of Chaudhry Nadeem Sultan v. The State through P.G Punjab and another (2022 SCMR 663), Sharif Khan v. The State and another (2021 SCMR 87), Muhammaduddin and another v. The State (2012 PCr.LJ 1388), Saad Zia v. The State and others (2023 SCMR 1898), Rehmatullah alias Rehmat v. The State (2009 YLR 2153), Muhammad Alam and 2 others v. The State (2011 PCr.LJ 864), Ghulam Ghous v. The State and another (2013 YLR 1698), Muhammad ljaz v. The State and another (2023 PCr.LJ Note 102), Ali Ahmed v. The State (2009 PCr.LJ 1467) and Anwar Shaheen and another v. The State and another (2021 SCMR 1032).

4. Conversely, the learned Additional Prosecutor General, duly assisted by learned counsel for the complainant, vehemently opposed the plea for pre-arrest bail. It was argued that the applicant is specifically named in the FIR with an assigned role of firing from a Kalashnikov, the shot of which allegedly struck the deceased Ali Gul. It was further contended that the applicant, along with his co-accused, formed part of an unlawful assembly which, while being armed, trespassed upon the property and, in furtherance of their common object, committed the murder of one person and caused injuries to another. Learned counsel emphasized that the recovery of spent empties from the place of incident, the number of accused involved, and the coordinated nature of the assault clearly indicate a premeditated and collective criminal act. It was submitted that the mere placement of the applicant's name in Column No. 2 by the Investigating Officer does not absolve him of criminal liability, particularly when the learned Magistrate, upon independent evaluation of the material, found sufficient grounds to summon him as an accused. The plea of enmity or previous professional relationship, according to the prosecution, is not sufficient to discredit the otherwise consistent and direct ocular account furnished by the complainant and eye-witnesses. The delay in lodging the FIR, it was argued, has been plausibly explained on account of the time consumed in transporting the injured and deceased to the hospital and performing the funeral rites. Lastly, serious apprehensions were expressed that if the applicant is released on bail, he may influence the prosecution witnesses or tamper with the evidence, thereby obstructing the course of justice. Considering the gravity of the offence, the specific role assigned to the applicant, and the nature of the allegations, it was contended that no case for the grant of pre-arrest bail is made out at this stage.

5. I have heard the learned counsel for the applicant, the learned counsel for the complainant, and the learned Additional Prosecutor General. I have also carefully perused the material available on record with their assistance. From a tentative assessment of the material available on record, it appears that the applicant has been specifically nominated in the FIR with a distinct role of causing a firearm injury to the deceased on his neck. As per the contents of the FIR, eight (8) named accused persons, including the present applicant, along with three unknown culprits, were armed with various weapons. It is alleged that co-accused Gulzar fired a straight shot from his rifle at Ali Gul, which hit him on the chest near the nipple; the present applicant Khair Muhammad fired at the deceased, striking him on the neck; and co-accused Arbab also fired at Ali Gul, hitting him on the right side of the chest. Furthermore, Bakhshal fired at the right leg, Aqeel at the elbow, and Dildar at the right hand of the deceased. Thus, according to the FIR, six (6) accused persons, including the present applicant, collectively fired six (6) shots at the deceased, whereas the post-mortem report of Ali Gul also reflects six entry wounds corresponding to firearm injuries. "INJURIES Injury No. 1: Lacerated punctured wound of firearm measuring about 6cm x 4cm x bone seen exposed and fractured over the right lower jaw, that is wound of entry in continuation with lacerated punctured wound of firearm measuring 0.8cm diameter located over the left side of neck, that is wound of exit. Injury No. 2: Lacerated punctured wound of firearm measuring 2.5cm diameter located over the right side of supra-sternal notch, margins inverted, that is wound of entry in continuation with lacerated punctured wound of firearm measuring 0.8cm diameter located over the left supra-clavicular region, margins everted, that is wound of exit. Injury No. 3: Lacerated punctured wound of firearm measuring 0.5cm x diameter x cavity deep located over the right side of chest just above the nipple, margins inverted, that is wound of entry. Injury No. 4: Lacerated punctured wound of firearm measuring 0.5cm x diameter x cavity deep located over the right side of chest, medial to injury No. 3, margins inverted, that is wound of entry. Injury No. 5: Lacerated punctured wound of firearm measuring 4cm x 1.5 cm, gutter shaped, located over the right anterior axillary side of chest. Injury No. 6: Lacerated punctured wound of firearm measuring lcm x diameter located over the anterior aspect of left elbow, margins inverted, that is wound of entry in continuation with lacerated punctured wound of firearm measuring 0.8cm x diameter located over the posterior aspect of left elbow, margins everted, that is wound of exit. Injury No. 7: Lacerated punctured wound of firearm measuring 1cm x diameter located over the anterior aspect of left elbow, below injury No. 6, margins inverted, that is wound of entry in continuation with lacerated punctured wound of firearm measuring 0.8cm x diameter located over the posterior aspect of left elbow, margins everted, that is wound of exit. Injury No. 8: Lacerated punctured wound of firearm measuring 5cm x 1cm x bone fractured over the proximal phalanx of index finger of right hand, margins inverted, that is wound of entry. Injury No. 9: Lacerated punctured wound of firearm measuring 0.8cm x diameter located over the middle phalanx of index finger of right hand, margins inverted, that is wound of entry. Injury No. 10: Lacerated wound of firearm measuring 4cm x 2cm, gutter shaped, located over the right forearm. Injury No. 11: Lacerated punctured wound of firearm injury measuring 2cm x 1cm in diameter located over the anterior aspect of right thigh, margins inverted, that is wound of entry in continuation with lacerated punctured wound of firearm injury measuring 1cm x diameter located over the posterior aspect of right thigh, margins everted, that is wound of exit."

6. The post-mortem report further reflects five corresponding exit wounds relating to the injuries described above. The existence of enmity between the parties is an admitted fact. Besides, the complainant and two eye-witnesses have fully implicated the applicant in the commission of the alleged offence. The material available on record, at this stage, prima facie connects the applicant with the offence alleged, which falls within the prohibitory clause of Section 497(1), Cr.P.C.

7. With regard to the delay of twenty-three and a half hours in lodging the FIR, it has been specifically mentioned in the FIR that the complainant first informed the police and then proceeded to the Taluka Hospital, Moro, where the post-mortem of the deceased was conducted and the injured Ali Asghar was also provided medical treatment. Hence, a plausible and prima facie satisfactory explanation for the delay is available on record. Even otherwise, mere delay in the registration of the FIR is not, by itself, a ground for the grant of bail.

8. As for the opinion of the Investigating Officer recommending the release of the applicant/accused under Section 169, Cr.P.C. due to alleged lack of evidence, it appears that the learned Magistrate did not concur with such opinion. The Magistrate observed that the Investigating Officer had failed to collect any corroborative material, such as Call Data Records (CDRs) or other tangible proof, to establish that the applicant Khair Muhammad was not present at the place of occurrence at the relevant time. The learned Magistrate thus concluded that sufficient material existed to take cognizance against all accused persons. Suffice it to say, the veracity of the applicant's plea of alibi shall be determined at the trial stage. It has been held in the case of Allah Dewayo Shahani v. The State through Prosecutor General, Sindh (2023 SCMR 1724), wherein it has been held as under: "

8. So far as the plea of alibi is concerned, nothing is said that at the time of commission of the offence mentioned in the FIR, no proper details were provided to demonstrate that the petitioner was actually behind bars in some other case and on which date and time he was released by the Magistrate in the other case. Even otherwise, the plea of alibi cannot be taken at this stage of boil, which was also not given any consideration by the Trial Court and the High Court. The learned counsel for the petitioner referred to the case of Zaigham Ashraf v. The State (2016 SCMR 18). In this case bail was allowed on the ground that, though the accused was initially implicated by the complainant for being present at the crime scene and made direct fire on the deceased, but during the course of investigation it was discovered that the accused was behind bars in some other case at the time of occurrence, hence the presence of the accused at the crime scene at the time of commission was excluded. The learned counsel also referred to another order of this Court rendered in the case of Chaudhary Nadeem Sultan v. The State (2022 SCMR 663). In this case also the plea of alibi was taken. The findings recorded by this Court in the order depict that, though the petitioner was ascribed the direct role of causing firearm injury to the deceased, but the CPO present in the Court stated that about 100 persons appeared before the investigating officer; amongst those, 18 persons furnished their duly verified affidavits that at the time of occurrence the petitioner was present in the chelum of a fellow villager, and even the son of the deceased had furnished an affidavit in which he specifically stated that at the time of occurrence the petitioner was present in the chelum. We have considered both the aforesaid orders cited by the learned counsel for the petitioner in support of his submissions, but, in our considered view, the aforesaid orders are distinguishable to the facts and circumstances of the present case. Even otherwise, in criminal cases, including bail matters, each case has its own peculiar facts which are to be considered according to the facts and circumstances of each case."

9. Pre-arrest bail is an extraordinary remedy of limited scope. It can only be granted in situations where the applicant does not, prima facie, appear to have committed a non-bailable offence, or where there exists a need for further inquiry into his guilt as contemplated under Section 497(2), Cr.P.C. Such circumstances are prima facie absent in the present case. The primary object of pre-arrest bail is to safeguard individuals from arrest where the process of law is likely to be abused for ulterior motives or driven by mala fide intention. However, no such mala fide or misuse of process has been demonstrated in this matter. Reliance in this regard may be placed upon the case of Rana Abdul Khaliq v. The State (2019 SCMR 1129).

10. No Call Data Record (CDR) or video evidence establishing the non-availability of the applicant at the place of occurrence at the relevant time has been collected by the Investigating Officer. The applicant/accused has been shown to be armed with a Kalashnikov, and a specific firearm injury is attributed to him, which finds corroboration from the post-mortem report. Therefore, the case law relied upon by learned counsel for the applicant/accused is distinguishable on facts and does not support the applicant's case.

11. From a tentative assessment of the material available with the prosecution, I am of the view that prima facie sufficient evidence exists to connect the applicant with the commission of the alleged offence, which carries punishment of death or imprisonment for life. Every conceivable or hypothetical contention that could be raised does not, by itself, render the matter one of further inquiry, particularly when such questions can be effectively determined by the trial Court after the recording and evaluation of evidence.

12. In view of the foregoing discussion, the interim pre-arrest bail earlier granted to applicant Khair Muhammad is hereby recalled, and the instant bail application stands dismissed.

13. It is, however, clarified that the observations made hereinabove are tentative in nature and shall not, in any manner, prejudice the case of either party during trial. The learned trial Court shall decide the matter strictly on the basis of the evidence produced and arguments advanced before it, without being influenced by any of the tentative findings recorded in this order. JK/K-1/Sindh Application dismissed.