2020 P Cr (PLP)

ABDUL MAALIK GADDI, J.

Having remained unsuccessful in obtaining his release on bail from trial Court in Crime No.111/2015 registered under sections 302, 201, 324 and 148, P.P.C. at Police Station Tharoo Shah. Now the applicant/accused Riaz Ali son of Mehar Ali Solangi is seeking his release on bail through instant bail application.

2. The facts of the instant bail application are that complainant Muhammad Hassan Solangi registered an FIR on 16.12.2015 at 1730 hours at Police Station Tharushah, stating therein that he has obtained agricultural land on lease basis from Memon community and in said land, he has grown sugarcane cultivation. On 05.12.2015 one gipsy Rahim Brohi along with cattle/sheeps and family members shifted near the land of complainant and his women folk used to bring drinking water from the hand-pump of complainant. However, the cattle/sheeps of Rahim Brohi used to damage crop of complainant, hence, on 08.12.2015, complainant in presence of his son Rashid Ali and sister's son Athar Ali alias Mitho Khan prevented Rahim Brohi to control his cattle/sheeps and not to take drinking water from his hand-pump, as his crop is being damaged, on which Rahim Brohi became annoyed and went away. On 10.12.2015, there was sugarcane crasher installed at the lands of complainant, where his son Rashid Ali and sister's son Athar Ali alias Mitho used to look-after it. On said night of 10.12.2015, complainant took night meal/dinner for them and went there where they took it and after some time, complainant returned back and on next date i.e. 11.12.2015 in the morning, complainant along with his another sister's son Mazhar Ali and Ali Raza went to sugarcane crasher. where they found that son of complainant namely Rashid Ali was lying un-conscious having injuries on his head and other parts of body and blood drops were oozing from nose and ears while Athar Ali was not available on his cot and some blood was available at his bed. Thereafter, complainant tried to woke up his son, but he did not response and searched for Athar but did not find him, hence, complainant party traced foot prints as foot prints were of five persons at place of incident but the foot prints were missed to the houses of Rahim Brohi and others, who were called but Rahim Brohi was not available there while Abdul Karim, Mir Hassan and Nadir Brohi were available, who did not give any response to complainant and disclosed that as to why he had prevented them from bringing water from hand-pump and not to damage his crops. However, since the injured Rashid Ali was seriously injured, hence he was shifted to Hospital for his treatment to Darbeo Hospital, wherefrom he was referred to Civil Hospital Naushahro Feroz and from there he was referred to Karachi Hospital, hence the complainant party left him there and returned back and on 14.12.2015 at 1100 hours, children of village informed to complainant that some bad smell is coming from the banana crop of lands of Adam Memon, hence, complainant along with witnesses and co-villagers proceeded there and when they reached there, where they found the dead body of Athar Ali, the son of his sister, subsequently, he informed the police on mobile phone and thereafter, dead body was shifted to hospital and after legal formalities, it was buried and thereafter, complainant appeared at Police Station where such FIR of the incident was lodged.

3. Mr. Shamsuddin N. Kobhar, learned counsel appearing on behalf of applicant/accused has argued that the name of the applicant/ accused did not find place in FIR and there is inordinate delay of 06 days in lodging of FIR, which has also not been plausibly explained by the complainant as such according to him false implication of the applicant/accused in this case with due deliberation and consultation could not be ruled out; that FIR was lodged on 16.12.2015 but the further statement of the complainant was recorded on 29.06.2016 after the delay of about six months, in which complainant has implicated the applicant/accused, which according to him has no value in the eye of law; that the incident as alleged by the complainant is unseen and there is no ocular evidence against the applicant/accused to connect him with the alleged offence, therefore, the case of the applicant/accused requires further probe; that the co-accused Meer and Ghulam Abbas have been admitted on bail by this Court vide an order dated 18.09.2017 and the role of the applicant/accused is at par; therefore, he was of the view that the applicant/accused is also entitled for same relief on the ground of rule of consistency/equal treatment.

4. Mr. Shafi Muhammad Mahar, learned Deputy Prosecutor General for the State has raised no objection to the instant bail application on the ground that the name of applicant/accused is not appearing in the FIR. Besides this, according to him that after arrest of applicant/accused on 28.03.2019, he has not been put into identification parade; that on 18.09.2017 co-accused namely Meer and Ghulam Abbas have already been granted bail by this Court on the same facts, therefore, the applicant/accused is also entitled for bail.

5. Mr. J.K Jarwar, learned counsel for the complainant has opposed this bail application on the ground that no doubt, the name of applicant/accused does not appear in the FIR; however, complainant in his further statement has implicated him in this case. He further contends that there is sufficient incriminating material available on record to connect the applicant/accused with the occurrence, in which double murder of two young men has been committed by the applicant/accused with the collusion of co-accused persons and he has also remained fugitive from the law, therefore, he does not deserve the concession of bail.

6. I have heard the learned counsel for the parties and also perused the record so made available before me.

7. It appears from the record that the alleged incident took place on 10/11.12.2015 whereas the FIR was registered on 16.12.2015 after the delay of six days, for which no satisfactorily explanation is given. It also appears that the name of applicant/accused does not appear in FIR. It also appears from the police papers that the complainant of the case in his further statement recorded on 03.02.2016 has given the names of the persons of Brohi community and not a single word was uttered by the complainant against the applicant/accused in his further statement but surprisingly vide his another further statement, which was recorded on 29.06.2016, wherein the complainant has disclosed the name of applicant/accused with charge of committing murders of deceased with collusion of other accused, thus, it appears that this is the case of three versions as firstly the complainant in his FIR recorded on 16.12.2015 did not mention the name of applicant/accused, secondly he in his further statement recorded on 03.12.2016 before Police he even did not disclose the name of applicant/accused and thirdly he in his another further statement, which was recorded on 29.06.2016, he disclosed the name of applicant/accused with the allegation as stated in his further statement, hence, it will be determined at the time of trial that out of these three versions, which one is correct or otherwise till then the case of the applicant/accused requires further probe. It also appears from the police papers that during the course of investigation, Investigating Officer recommended the case in "A" class and submitted such summary before the concerned Magistrate, who also agreed with it. It also appears that no recovery has been effected from the possession of applicant/accused, therefore, in my tentative opinion, the applicant/accused has made his case fit for further inquiry. It also reflects from the record that co-accused Meer and Ghulam Abbas have also been granted bail by this Court in Cr. Bail Application No.S-642/2017 vide an order dated; 18.09.2017 and the case of applicant/accused is almost on same facts and circumstances, therefore, on this ground also, the Applicant/accused is entitled for concession of bail on the basis of rule of consistency.

8. During the course of arguments, I have specifically asked a question from the learned counsel for the complainant whether it is the case of three versions, to which he replied in affirmative. In view of the above, I have come to the conclusion that the applicant/accused has made out his case for grant of bail, therefore, I admit him on bail subject to furnishing his solvent surety in the sum of Rs.3,00,000/- (three lac) with a PR bond in the like amount to the satisfaction of the trial Court.

9. Needless to mention here that any observation made herein this order, shall not affect the merits of case.

10. It also appears from the record that this is the case of double murder, therefore, trial Court is directed to conclude the trial within a period of two months after receipt of this order. No unnecessary adjournment shall be granted to either side. Compliance report be submitted to this Court though Additional Registrar of this Court.

11. It is also made clear that in case, if the applicant/accused misuses the bail during trial then Presiding Officer of the trial Court would be competent to cancel the bail of the applicant/accused without making any reference to this Court.

12. This bail application was allowed after hearing the parties in the early part of the day in open Court and aforesaid are the reasons in support of that short order. ADN/R-37/Sindh Bail granted.