2019 P Cr (PLP)

MUHAMMAD IQBAL MAHAR, J.

Through instant bail application, applicants Allah Bux, Amanullah and Lal Ahmed alias Lal Bux seek post arrest bail, in Crime No.95/2015 registered at Police Station 'A' Section, Ghotki for offence punishable under sections 302, 147, 148, 149, P.P.C.

2. The brief facts of the prosecution case are that there was matrimonial dispute between the parties whereupon the accused persons used to issue threats to Ali Muhammad, the father of complainant, that he would be killed. On 27.05.2015 complainant Irfan Ali, his father deceased Ali Muhammad and uncles Mehrab Ali and Khan Muhammad were going towards town by foot and when at 0800 hours reached near Hirra Public School, accused Hamadullah, Amanullah, Lal Ahmed alias Lal Bux, Allah Bux, Abdul Razak having iron rods, and Moula Bux carrying lathi in their hands came in-front of them. Accused Abdul Razak challenged the complainant and his uncles not to go near as they would commit murder of Ali Muhammad. Complainant party remained silent due to fear. Accused Hamadullah, Abdul Razak, Lal Ahmed alias Lal Bux. Amanullah and Allah Bux with intention to commit murder, caused iron rod blows to Ali Muhammad on different parts of his body, due to which he died. Thereafter, all the accused persons fled away while raising slogans. After post mortem and funeral of the deceased, the complainant lodged the FIR.

3. The applicants filed a bail application before learned trial Court which was refused vide order dated 29.09.2016 and being aggrieved from the order, the applicants have approached this Court for the same relief.

4. Learned counsel for the applicants-accused contended that the applicants are innocent and have falsely been involved in this case due to matrimonial dispute; that the names of applicants do not transpire in roznamcha entry; that there is un-explained delay in lodging the FIR; that nothing has been recovered from the possession of applicants accused; that fatal injuries are attributed to co-accused persons, hence the case against the applicants accused requires further inquiry and they are entitled to grant of bail.

5. Learned DPG while refuting the contention of learned counsel for the applicants submitted that the applicants accused are nominated in FIR with specific role of causing injuries to deceased which is corroborated by medical evidence; that the eye-witnesses have also supported the version of complainant in their 161, Cr.P.C. statements; that the crime weapons have been recovered from the possession of applicant Lal Ahmed and co-accused Hamadullah. Lastly he submitted that the offence falls within prohibitory clause of section 497, Cr.P.C., therefore applicants accused are not entitled to grant of bail.

6. I have heard learned counsel for the applicants, learned DPG for the State at length and perused the record minutely. It appears that the names of the applicants accused transpire in the FIR. They, being armed with iron rods came at the place of incident which shows their design and intention to commit murder of deceased. They are directly charged with specific role of causing iron rod blows to deceased Ali Muhammad which is corroborated by post mortem report. The witnesses in their statements, recorded under section 161, Cr.P.C., have supported the version of complainant. The crime weapons have been recovered from applicant accused Lal Ahmed and co-accused Hamadullah. The offence for which the applicants accused have been charged falls within restrictive clause of section 497, Cr.P.C.

7. Adverting to the contention of learned counsel for the applicants that there is delay in FIR, in this regard it is pertinent to mention here that delay is explained by the complainant that after the incident he shifted the dead body to Hospital for post mortem and after funeral ceremony lodged the FIR. So far as non appearance of the names of the applicants in roznamcha is concerned, as per roznamcha entry, the police was informed on Mobile phone regarding un natural death of deceased Ali Muhammad and were asked to come at Hospital for completing legal formalities, hence it was not necessary that detailed story should have been given to the police on mobile phone, therefore the contention of learned counsel carries no weight.

8. For what has been discussed above I am of the considered view that there is sufficient incriminating material available on record, which prima facie connect the applicants with the crime, and when a prima facie case is established from tentative assessment of evidence, discretion for grant of bail is normally not exercised in the cases entailing capital punishment. Accordingly instant bail application being devoid of merits is dismissed. The observations made above are tentative in nature and the trial Court may not be influenced while deciding case. MQ/A-137/Sindh Bail refused.