2022 PLP 570 (MLD)

MUHAMMAD SALEEM JESSAR, J.

Through this bail application, Applicants Anwar Ali Khaskheli son of Soaf Khaskheli and Niaz Ali Khaskheli son of Soaf Khaskheli seek their admission on post-arrest bail in Crime No. 63 of 2019, registered at Police Station Jhol under sections 302, 392, 201, 34, P.P.C. Earlier, the bail plea of applicants has been declined by trial Court vide impugned order dated 03.12.2019. After completion of investigation, the case has been challaned by police on 26.09.2019, which is now pending trial before the Court of learned 2nd Additional Sessions Judge, Sanghar vide Sessions Case No.241 of 2019 [Re: State v. Anwar and another).

2. The allegation against the applicants / accused is that they after snatching money amounting to Rs.57,000/- from complainant's brother namely Tamil committed his murder and thrown his dead body into Sim-Nala (saline drain) for causing disappearance of the evidence.

3. Learned counsel for applicants / accused has contended that applicants / accused are innocent and they have been implicated falsely in this case; that all prosecution witnesses are interested one; that there is no eye-witness of murder or robbery as disclosed in the FIR, hence, matter requires further enquiry. He has further contended that recovery has been foisted upon the applicants; that FIR is delayed for four (04) days for which no satisfactory explanation has been furnished and the same has been lodged with due deliberation and consultation; that no specific role has been assigned to the applicants / accused, therefore, they are entitled for concession of bail. While concluding his arguments, he has relied upon the case laws reported as 2017 SCMR 61, 2017 SCMR 596, 2016 PCr.LJ Sindh 1754, 2014 SCMR 1347, 2014 SCMR 1502, 2014 SCMR 27, PLD 2013 Pesh. 120, 2011 SCMR 1543 and 2018 YLR(N) Sindh 149.

4. Conversely, learned Assistant Prosecutor General assisted by learned counsel for complainant while supporting the impugned order contended that applicants have been nominated in the FIR with specific role and recovery has also been effected from them and offence with which the applicants stand charged carries capital punishment and does not fall within the scope of prohibitory clause of section 497(1), Cr.P.C. hence, they are not entitled for concession of bail.

5. Heard arguments and perused record.

6. No doubt there is delay of four (04) days in lodgment of FIR but in present incident one innocent person has lost his life and therefore, delay in lodgment of FIR per se is no ground when such horrible incident had taken place. The perusal of record further reflects that both applicants / accused after snatching money from deceased, as stated in the FIR, committed his murder and as a result of which, he lost his life, therefore, they do not deserve concession of bail. The basic ingredients required for extra ordinary relief are lacking in this case. It is settled principle of law that bail application is required to be decided on tentative assessment of matter and deeper appreciation of evidence is precluded. Applicants are involved in offence punishable with capital punishment falling within the ambit of prohibitory clause under section 497(1), Cr.P.C, with specific role and prima facie there appear sufficient material to connect the applicants with commission of offence. Besides, case laws referred by learned counsel for applicants are distinguishable with the fact and circumstances of present case.

7. The eye-witnesses namely Dhana Ram and Faqeero Menghwar; who saw the accused while causing pistol butt blows and injuries to deceased Tamil at the time of offence simultaneously had roped his hands as well as feet and after committing his murder had thrown his body in the saline drain, aims to cause disappearance of evidence. PWs Dhana Ram and Faqeero Menghwar were examined by police in terms of Section 161, Cr.P.C thereby they had fully implicated the accused.

8. In view of the above, I am of the opinion that there is sufficient material available on record to connect the applicants with commission of crime falling under prohibition clause of Section 497, Cr.P.C. hence, I do not find any merit in this bail application which is accordingly dismissed.

9. It need not to reiterate that the observation(s) made hereinabove is are tentative in nature and shall not prejudice the case of either party during trial. However, learned trial Court is directed to expedite trial of the case and conclude its early disposal / conclusion under intimation to this Court. Copy of order be communicated to the trial Court by sending its copy to Sessions Judge, Sanghar or faxed today for compliance. SA/A-143/Sindh Bail declined.