2018 PLP 107 (YLRN)

AFTAB AHMED GORAR

J.-- This single order will dispose of two bail applications arising out of one and the same FIR bearing No. 185 of 2014. Police Station Mauripur Karachi South, registered under Sections 147, 148 and 302 P.P.C. Earlier the bail plea of the applicant was declined by learned trial Court vide order dated 21-02-2017 and 24-08-2017 respectively.

2. The sum and substance of the prosecution story as is envisaged in the FIR are that on the eventful day deceased Salman Shah went to play cricket in Javed Bahria Cricket Ground situated Maripur and during cricket match it was about 0815 hours a quarrel took place and the members of opposite team namely

1. Abdul Jaleel,

2. Eid Muhammad and others hit the deceased with bats and other articles, in the result deceased was seriously injured and was shifted to Ziauddin Hospital, where on very next day i.e. 26.07.2014, deceased succumbed to the injuries and died; hence this FIR.

3. Mr. Mahmood A. Qureshi, Advocate representing applicant Abdullah Shah, contended that applicant is absolutely innocent and has been falsely dragged in the present case due to mala fide intention and ulterior motives; per learned counsel the alleged registration of FIR is mere on hearsay evidence; except FIR, no further statement of the complainant as alleged has been recorded; per learned counsel complainant has lodged the FIR after due deliberation and the consultation, because there is inordinate delay in lodgment of the FIR approximately ten days; which is not plausibly/audibly explained by the prosecution; per learned counsel no overt act has been attributed to the present applicant because joint role of inflicting bat injuries to the deceased has been scribed to all assailants; per learned counsel there are 161, Cr.P.C. statements each of two prosecution witnesses, firstly on 05.08.2014 secondly on 20.08.2014 and on 31.08.2014 which itself belied the prosecution story as is cooked up in the insincere FIR; per learned counsel PW-Saddam Hussain has recorded his statement before the trial Court and negated his earlier statement recorded under section 161, Cr.P.C. as such said prosecution witness has been declared as hostile by the prosecution because there was no truth on the earth about scenario; per learned counsel seeing the surrounding circumstances of the prosecution case, a case under sub-section (2) of section 497, Cr.P.C. has been made out and the applicant is also entitled for grant of such relief as a right of concession; per learned counsel challan has been submitted and the applicants are no more required for any further investigation purposes; per learned counsel there is no apprehension of tampering with the prosecution evidence because some of the prosecution witnesses have earlier been examined; per learned counsel the applicant may be enlarged on post arrest bail,

4. Mr. Muhammad Hanif Samma, advocate, representing applicants in Crl. Bail Appln. No.1381 of 2017 opt the same arguments as is advanced by the learned counsel representing the applicant in Crl. Bail Application No. 1385 of 2017 and further contended that two prosecution witnesses Saddam Hussain and Khan Zaman have been examined before the learned trial Court; both posed eye-witnesses could not confirm the contents of the FIR and have been declared as a hostile witness; therefore, both the prosecution witnesses belied truth as alleged in the baseless FIR; per learned counsel must of-arrest and recovery Suleman Khan has also been given up by the prosecution; per learned counsel the applicants are roaming behind the bars since their arrest; as such keeping the applicants further in the prison would not resolve any purposes; per learned counsel the applicants/accused seeks indulgence of this Court to be enlarged on post arrest bail as a matter of further probe into their guilt as is incorporated under sub-section (2) of section 497, Cr.P.C. Both the learned counsel relied upon the case law as reported in PLD 1995 Supreme Court 34, 2010 SCMR 1178, 1980 SCMR 784, 2011 SCMR 1943, NLR 2005 Criminal 469

5. Mr. S.M.Azad Khan, advocate, representing the complainant contended that applicants are real culprits of the scenario; per learned counsel the deceased went to play cricket at the ground which fact is in the field and deceased was beaten over there by the assailants with bats; per learned counsel deceased after receiving serious injuries shifted to hospital whereby injured succumbed to his injuries and died in the hospital due to the injuries sustained by him at his person; per learned counsel specific role of beating the deceased has been attributed to the applicants; per learned counsel the prosecution witnesses have also fully implicated the applicants with the commission of the offence; per learned counsel there is no inordinate delay, if there is same would meet with the medical treatment of the deceased; per learned counsel all the accused are equally liable for the offence so committed by them; per learned counsel earlier the pre-arrest bail of the two applicants was declined by the learned trial Court and one post-arrest bail has also been declined by the learned court below; per learned counsel if applicants are admitted to post-arrest bail there is genuine apprehension of tampering with the prosecution evidence in any manner; per learned counsel the applicants are highly dangerous, desperate and hardened criminals; per learned counsel applicants have lost life of an innocent teenage boy; per learned counsel there is sound evidences collected by the prosecution connecting the applicants with the commission of offence; per learned counsel the applicants are not entitled for any discretionary relief; per learned counsel the post arrest bail plea of the applicants may be rejected.

6. Ms. Seema Zaidi, DPG, for the State have vehemently opposed the grant of post arrest bail; learned DPG opt the arguments advanced by the learned counsel for the complainant; learned DPG further contended that all the applicants / accused are naturally equally liable for the offence so as committed on earth; learned DPG further contended that earlier bail plea of the applicants has been declined by the learned trial Court as well as by this Court, therefore all the applicants didn't deserve any leniency with regard to the enlargement of bail; therefore, the bail plea of the applicants may be declined.

7. Heard and record perused.

8. Admittedly, there is inordinate, delay in lodgment of the FIR approximately ten days, which is not plausibly explained by the prosecution; there are general allegations against the assailants of beaten the deceased via bats; no specific and isolated role has been attributed to any of the assailant because joint role has been assigned which makes the case of prosecution dubious, yet it would be determined after the trial commence which one of the assailant mercilessly beaten the injured who succumbed to the injuries and died in the hospital; the case of the applicants do fall within the domain of subsection (2) of section 497, Cr.P.C. and calls for further probe into their guilt. Earlier the bail application was moved on behalf of the applicants which was disposed of with directions to the learned trial Court to examine the witnesses namely Saddam Khan and Khan Zaman preferably within the period of one month from 04.05.2017 and in case of non-examination within the stipulated time, learned counsel for the applicants submits that he may be allowed to repeat the bail application, vide order dated 26-04-2017; the learned trial court complied the directives of this Court and examined prosecution witnesses Saddam Khan and Khan Zaman respectively. Both the prosecution witnesses have been declared as a hostile witness and another witness Sulleman Khan has been given up by the prosecution/DDPP as per progress report of the learned Additional District and Sessions Judge X, Karachi (West) dated 12.10.2017.

9. As discussed supra I am inclined to grant bail to the applicants subject to their furnishing solvent surety in the sum of Rs.500,000/= (Rupees Five Hundred Thousand only) each and P.R. Bond in the like amount to the satisfaction of the learned trial Court. Note- The observations made hereinabove are tentative in nature and will not cause any harm to the proceedings at trial before the learned trial Court. WA/A-110/Sindh Bail granted.