2019 PLP 1569 (MLD)

AMJAD ALI SAHITO, J.

By this common order, coaptioned bail applications arising out of one and same Crime No. 69 of 2018, registered at Police Station Rohri for offences under sections 302 and 365, P.P.C. are disposed of together. Earlier bail pleas of above-named applicants were turned down by learned Additional Sessions Judge (Hudood), Sukkur vide common order dated 30.05.2018.

2. Brief facts of the prosecution case are that on 18.05.2018 at about 2340 hours, complainant Muhammad Peeral Mangnejo lodged FIR alleging therein that Mumtaz alias Mangan, aged about 40-years is his uncle, who works as a sanitary worker at SWAMI TRADERS, Dates Market, Rohri. Murtaza and Budhal also work as laborers along with said Mumtaz alias Mangen at the same place. On 17.5.2018, the complainant went to his uncle at Dates Market, Rohri for taking money where his uncle Mumtaz alias Mangan, Mumtaz, and Budhal met him. Complainant requested his uncle for money, on which he replied that his salary is due against owners of Godown, named Gangoo Mal and Haroo Mal who still have not paid salary. Thereafter, Mumtaz alias Mangan demanded his salary from Gangoo Mal and Haroo Mal, on which they became annoyed and went away. Complainant stayed that night at shop along with his uncle, when at about 11.30 p.m, Seth Gangoo Mal and Haroo Mal came at Dates Market along with police picket in charge ASI Muhammad Farooq Jagirani, P.C. Leemo Khan, P.C. Driver Muhammad Nawaz Bhatti, duly armed with weapons on police mobile with whom two unknown persons were also accompanied, who forcibly kidnapped Mumtaz alias Mangan in official police mobile. On the next morning, complainant along with abovenamed witnesses went to Seth Gangoo Mal and Haroo Mal and asked them about the recovery of his uncle Mumtaz from the police custody who did not reply positively. Thereafter, Dates Market police mobile came and threw the body of Mumtaz from mobile before the shop No.4 of Gangoo Mal and Haroo Mal, known as SWAMI TRADERS. Then complainant gave such information to his uncle Qadirdad through mobile phone who came from village and after getting legal proceedings of Mumtaz alias Mangan one from hospital, complainant appeared at P.S. and lodged FIR that accused Seth Gangoo Mal and Haroo Mal on account of demand of salary have caused, tortured have committed murder of Mumtaz alias Manganin collusion with police.

3. It is, inter-alia, contended by the learned counsel for the applicants Gangoo Mal and Haroo Mal in Crl. B.A.No.S-328 of 2018 that the applicants are innocent and have falsely been implicated in this case; that there is inordinate delay of about 24-hours in lodging of the FIR and such delay has not been explained by the complainant; that PWs are closely related to the complainant, therefore, their statements cannot be relied upon safely; that the medical evidence is in conflict with the ocular version; that it is unbelievable and afterthought story that a murder can be committed merely on the issue of meager salary; that SSP, Sukkur assigned the inquiry to Inspector Ghulam Ali Jumani, who after investigation submitted his report before the SSP, Sukkur, in which no specific allegation of murder of deceased Mumtaz alias Mangan has been assigned against the present applicants; that the complainant has lodged FIR with mala fide intentions and ulterior motives. Lastly, he prayed for confirmation of pre-arrest bail granted to said applicants by this court.

4. Learned counsel for applicant Farooq Haider in Crl. B. A. No.S-335 of 2018 mainly contended that applicant is innocent and has been falsely implicated in this case; that there was a dispute upon salary matter between deceased and co-accused Gangoo Mal and Haroo Mal; that the applicant has no concern with the alleged offence; that the deceased died due to suffocation as he slept in the Godown. Lastly, he prayed for confirmation of the instant bail application.

5. Learned counsel for applicants Leemon alias Leeman Khan and Muhammad Nawaz in Crl. B.A.No.S-346 of 2018 contended that this is a case of two versions, one given by the complainant and second narrated by Investigating Officer Ghulam Ali Jumani and it is yet to be seen at the trial which version is correct; that there is no motive against the applicants; that it is an unseen incident, hence no specific role has been assigned against the said applicants. Lastly, he prayed for confirmation of bail application. In support of his contentions, reliance has been placed upon the cases reported as Qamar Naseem alias Baitu Masih and others v. The State (2006 YLR 1221), Malik Sajid Ismaeel and others v. The State (2017 MLD 446), Sohail Zubair and 3 others v. Dildar Ali Khan and another (2017 MLD 836), Shah Zaman v. The State (2018 YLR 1800) and Muhammad Bashir v. Mirza Ali (2003 PCr.LJ 619).

6. On the other hand, learned counsel appearing on behalf of the complainant contended that delay has properly been explained by the complainant that when the police officials threw the dead body of deceased at Shohara Mandi, first he has informed his uncle Qadirdad through mobile phone and when he came from his village, body of deceased was shifted to hospital and after completing formalities, complainant appeared at police station and lodged the FIR; that the applicants are nominated in the FIR with specific role; that Inspector Jumani also implicated all the accused persons in this case for committing the murder of deceased Mumtaz alias Mangan; that the PWs in their statements recorded in terms of section 161, Cr.P.C. have fully implicated the applicants with the commission of offence; that there is no mala fide on the part of the complainant or Investigating Officer, therefore, he opposed for the grant of pre-arrest bail to the applicants/ accused.

6. Learned DPG for the State adopted the arguments, advanced by learned counsel for the complainant and further contended that all the PWs have fully implicated the applicants with the commission of alleged offence; that there is no any direct evidence against the applicants Gangoo Mal, Haroo Mal, and Lemon and raised no objection for the grant of bail of abovenamed accused. Lastly, he submitted that against rest of the applicants, sufficient evidence is available on record to connect them with the commission of the offence and he opposed the confirmation of pre-arrest bail of applicants Muhammad Nawaz and Farooq Haider.

7. I have considered the submissions of learned counsel for the parties and have gone through the material available on record. The allegations leveled against the applicants Gangoo Mal and Haroo Mal are that when deceased Mumtaz alias Mangan demanded a salary from the said applicants, they became annoyed and at about 11.30 p.m., applicants Gangoo Mal and Haroo Mal came at Chowara Mandi along with co-accused ASI Farooq Jagirani, P.C. Leemon, P.C. Driver Muhammad Nawaz Bhatti forcibly abducted Mumtaz alias Mangan in police mobile and on morning co-accused (police official) threw the dead body of deceased Mumtaz alias Mangan. The SSP, Sukkur assigned inquiry to Inspector Ghulam Ali Jumano, who during the course of investigation recorded statements of PWs, who have fully supported the version of the complainant. I.O. also recorded statements of PC Shahzado, P.C. Abdul Jabbar and P.C. Qurban Ali, they have disclosed in their statements that ASI Farooq and other police officials took away deceased Mumtazalias Mangan and finally the I.O. found guilty all the above-named applicants/accused of committing the murder of deceased Mumtaz alias Mangan. It is settled principle of law that at bail stage only tentative assessment is to be made. Perusal of record shows that names ofl applicants/accused transpired in the FIR with specific role that applicants Gangoo Mal and Haroo Mal called applicants ASI Farooq Haider, Leemo alias Lemon Khan and Muhammad Nawaz, who took away deceased Mumtaz alias Mangan and thereafter threw his dead body in front of shop of applicants Gangoo Mal and Haroo Mal.

8. Furthermore, it is settled proposition of law that concession of pre-arrest bail is always extended in the case of mala fide and ulterior motives on the part of complainant/prosecution to save innocent people from their unjustified arrest and humiliation at the hands of police, but learned counsels for applicants have failed to bring on record any material to believe that they have been falsely involved due to malice or ulterior motives of the complainant or they had not committed the alleged offence. Reliance is placed upon the case of Riaz Ahmed v. The State (2009 SCMR 725).

9. So far plea of learned counsel for applicants that the medical evidence is not in line with the ocular account is concerned, it will suffice to say that at bail stage same cannot be considered without a deeper appraisal of evidence. Reliance is placed upon the case of Mumtaz v. The State (2012 SCMR 556), wherein Hon'ble Supreme court of Pakistan has held that: "3.......the conflict between medical evidence and the ocular account cannot be appreciated without a deeper appraisal of evidence which is not warranted at bail stage".

10. Considering the above facts and circumstances, applicants/ accused have failed to make out their case for grant of bail. The alleged offence falls within the ambit of prohibitory clause of section 497, Cr.P.C. Prima facie, ample evidence/material is available on record to connect the present applicants with the commission of the alleged offence. The case laws relied upon by learned counsel for the applicants in Crl. Bail Application No. S-346 of 2018 are distinguishable to the facts and circumstances of the case in hand and are therefore not applicable. Hence, I do not find a fit case for grant of bail to the applicants and resultantly, instant Bail Application No.S-328 of 2018, filed by applicants Gangoo Mal and Haroo Mal, Crl. Bail Application No. S-335 of 2018, filed by applicant Farooq Haider Jagirani and Crl. Bail Application No. S-346 of 2018, filed by applicants Leemon alias Leemon and Muhammad Nawaz stand dismissed and earlier orders granting interim pre-arrest bail to the applicants by this court are hereby recalled.

11. Needless to mention here that observations made hereinabove are tentative in nature and would not prejudice the case of either party at trial. MQ/G-14/Sindh Bail refused.