2014 PLP 1471 (MLD)

MUHAMMAD IQBAL KALHORO, J.

The applicant namely Syed Mehboob All Shah after dismissal of his bail application by the learned trial Court vide order dated 15-3-2014 in respect of Cr.No.56/2013 of Police Station Talhar District Badin under sections 302, 114, 147, 148, 504, P.P.C. has filed present bail application seeking his release on bail.

2. The facts leading to the prosecution case in brief are that complainant Syed Abdul Sattar Shah lodged F.I.R. on 6-6-2013 at about 1430 hours describing an incident occurring on the same date at about 1100 hours. According to him, applicant Syed Mehbob Ali Shah along with other accused namely Muhammad Hashim Shah, Dil Thaar Shah, Aashique Shah and Sikander Shah, who were duly armed with hatchets arrived at the lands of his brother namely Ismail Shah, where present applicant instigated other accused to start assault upon his brother Ismail Shah, as a result of which, the rest of the accused co-jointly caused hatchet blows at different parts of the body of his brother, who died at the spot. Such information was communicated to the complainant by his brother Anwar Shah, as a consequence of which, he appeared at Police Station and lodged F.I.R. against the accused persons.

3. Learned counsel for the applicant has mainly emphasized in his arguments that the only role attributed to the applicant is of instigation; according to him admittedly the applicant is alleged to be present unarmed at the spot and has played no role in causing murder of the deceased. Per learned counsel it is yet to be determined at the trial as to whether the co-accused acted under the influence of present applicant/accused; the incident appears to be improbable as in presence of the witnesses this incident had happened, yet they did not move to save the deceased from the assault of the accused persons. He has relied upon the case-laws reported in 2010 MLD 877, 2013 YLR 1481 and 2013 MLD 1475.

4. Learned counsel appearing on behalf of the complainant on the contrary has vehemently opposed the grant of bail to the applicant and has taken exception to the arguments advanced by the learned defence counsel by stating that the active role of instigation is attributed to the accused, he was present at the spot which is not denied; complainant is the real uncle of the applicant/accused Mehboob Ali Shah, therefore, there is no chance of his false implication; the witnesses have supported the version advanced by the complainant in the F.I.R. in their statements before the I.O. He has also pointed out that almost for the last six months, the complainant and witnesses are attending the trial court but the accused persons are deliberately causing delay in commencement of the trial.

5. Learned State Counsel has supported the arguments of learned counsel for the complainant and has further stated that there is sufficient evidence connecting the applicant with the commission of offence, which carries capital punishment, therefore, applicant is not entitled for concession of bail at this stage.

6. I have heard learned counsel for the parties and perused the material available on record with their assistance.

7. The role attributed to the applicant is of instigation which is even not denied by the defence counsel. The presence of the applicant at the spot is supported by the statements of the eye-witnesses recorded under section 161 and under section 164, Cr.P.C. during investigation, who were present at the spot. The medical report shows that deceased Ismail Shah was brutally murdered as the Medico Legal officer has found as many as 10 sharp cutting injuries on the person of the deceased during his postmortem, which prima facie supports the prosecution version of the incident. The contention raised by defence counsel was that allegations of instigation against the accused require further probe into his guilt as it is yet to be seen during the trial whether the main accused acted under the influence of present accused or not cannot be appreciated at bail stage in as much as on any hypothetical question bail cannot be granted. The accused has to satisfy the court that there exists no discernable nexus connecting him with the offence before asking for discretionary relief of bail. The deeper appreciation of evidence at bail stage would amount to prejudging the case of either side, which is not permissible under the law. Presence of accused at the spot is not disputed. The investigating officer has found accused involved in the crime during investigation and has sent up case against him in the court. In the present case allegedly at the instigation of the applicant/accused murderous assault was launched by the co-accused in which the person having high qualification being Director in English Department, University of Sindh Jamshoro had lost his life. The prosecution has collected sufficient material against the applicant/accused during the investigation which prima facie connects the present applicant with commission of the offence.

8. I have also gone through the case-law relied upon by the learned counsel for the applicant. In the case of Ghulam Muhammad and others v. The State (2010 MLD 877), Aitebar v. The State (2013 YLR 1481) the bail was granted to the accused on the ground of their mere presence at the spot without active participation in the incident. Whereas the case of Ali Muhammad v. The State (2013 MLD 1475), pertains to cancellation of bail under section 497(5) Cr.P.C. Admittedly, the principles governing the grant of bail are entirely different than the ones regulating the cancellation of bail. Under these circumstances, I am of the view that above case-law cited by the learned defence counsel in his arguments are distinguishable to the facts prevailing in the present case.

9. Learned counsel for the complainant has produced the certified copies of the case diaries w.e.f 1-10-2013 to 8-3-2014 which show that almost on all the dates, complainant and P.Ws are present but the accused party on one or the other pretext is not proceeding with the case.

10. In view of the above discussion, I do not find that the applicant/ accused has been able to make out case for grant of bail. Accordingly, instant bail application is dismissed. However, learned trial court is directed to expedite the matter and examine the material witnesses within the span of four months, where after the applicant would be at liberty to move fresh bail application before the learned trial court, which would be decided on its own merits. The Criminal Bail Application stands disposed of. MWA/M-123/Sindh Bail refused.