2020 P Cr (PLP)

AFTAB AHMED GORAR, J.

By this common order, I intend to dispose of aforesaid bail applications whereby applicants Ahmed Ali, Shabir Ahmed, Kehar Khan, Mohammad Azeem, Kaleemullah, Wazeer, Sanaullah and Noor Mohammad seek pre-arrest bail in Crime No.45/2019 registered at Police Station, Pano Akil under sections 302, 147, 148, P.P.C.

2. The facts in brief necessary for disposal of aforesaid bail applications are that on 05.04.2018 at about 1430 complainant Mst. Rani lodged FIR at Police Station, Pano Akil stating therein that deceased Mumtaz Ali was her son, on 18.3.2016 at about 11:000 hours he went to Thikratho city for purchasing of mobile phone battery but he did not return and some of the villagers informed the complainant that her son has been kidnapped by some police officials. Thereafter, she along with her relatives went to nearby Police Station where she received no useful information. On the next day i.e 19.03.2018 at about 11:00 hours she accompanied with her son Imtiaz Ali went to Police Station Pano Akil where she inquired about her abducted son from the SHO Police Station, Pano Akil Ahmed Ali Halepoto who shown her some photographs and she identified that deceased is her son and raised hue and cry at there and also asked the accused SHO Ahmed Ali Halepoto why you have committed murder of my son who replied that your son is hardened and desperate criminal that is why he has been killed in an police encounter on 19.03.2018 at 0112 hours at night. The accused each SIP Ahmed Ali Halepoto, Sanaullah Khunharo SHO Police Station Baiji Sharif 5 PC Mohammad Yakoob

6. PC Ahmed PS Baiji Sharif, PC Wazeer Ali, PC Kaleemullah, 9 DPC Noor Mohammad Police Station Pano Akil and three unknown accused persons have committed murder of the complainant's son by showing false and fake encounter and the accused persons have buried the deceased Mumtaz Ali by showing false and fake encounter. Thereafter complainant got directions from the Court and lodged FIR.

3. It is, inter alia, contended by the Counsel for applicants that there is delay of about 16 days in lodging the FIR for which no plausible explanation has been furnished by the complainant; that SSP Sukkur has constituted a JIT and JIT after conducting impartial inquiry recommended the case under 'B' Class but learned Magistrate did not agree with the report of JIT and took cognizance; that this is unseen incident and there is no eye-witness account of the incident therefore, they prayed for confirmation of bail to the applicants.

4. Conversely, Mr. Noor Mohammad Soomro, learned counsel for complainant vehemently opposed the bail application on the ground investigation has been conducted with mala fide intention which has not been properly conducted. He further contended that it is extra Judicial killing and Police in order to destroy the evidence have buried the dead body of deceased in graveyard. He prayed for cancellation of bail applications.

5. Learned Deputy Prosecutor General conceded the confirmation of bail on the ground that this is unseen incident as the deceased had gone to purchase battery from Thikratho but there is no specific role against Police official nor there is eye-witness of incident. He further submitted that JIT has recommended the case under 'B' Class but learned Magistrate took cognizance. Apart from above, there is criminal record against deceased and in this regard four FIRs have been registered against him and at this stage the matter requires further inquiry.

6. I have considered the arguments advanced by learned counsel for parties and have perused the record. Learned Counsel for complainant opposed the confirmation of bail while learned DPG conceded for confirmation of bail. Perusal of record reflects that there is delay of about 16 days in lodging the FIR and prima facie no plausible explanation has been given by the complainant. As per prosecution case the applicants after receiving spy information reached at place of wardat and dacoits on seeing Police party started firing upon them and during exchange of firing one person have lost his breath. It is yet to be determined at trial whether deceased died from the fire of Police or from fire of his own companion. Apart from above, there is no eye-witness account of the commission of murder of deceased Mumtaz Ali as it is unseen incident. Furthermore, the case was thoroughly investigated by JIT constituted by SSP Sukkur and JIT recommended the case under 'B' Class but learned Magistrate did not agree with the report of JIT and took cognizance. More so, after investigation challan has been submitted, hence applicants are no more required for further investigation by police, therefore, I am of the considered view that the case against the applicants calls for further inquiry as envisaged by section 497(2), Cr.P.C. In view of above, I am of the considered view that applicants are entitled for confirmation of interim bail. Accordingly, aforesaid bail applications are allowed, interim pre-arrest bail granted to the applicants/accused vide orders dated 18.06.2019, 19.06.2019 and 30.07.2019 respectively are confirmed on same terms and conditions. Bail Applications Nos.S-341/2019, S-344/2019 and S-404/2019 stand disposed of in the above terms. SA/S-128/Sindh Pre arrest bail confirmed.