2007 PLP 2209 (YLR)

MUHAMMAD AFZAL SOOMRO, J.

By this order I intent to dispose of this pre-arrest bail application bearing Criminal Bail Application No.112 of 2007, filed on behalf of applicant. Abdul Sattar Narejo, in a case bearing F.I.R. No.104 of 2001 of Police Station K.N. Shah District Dadu for offence under sections 302/324/148/149/ 114/452, P.P.C. The prosecution story as enunciated in the F.I.R. is that on 27-2-2001 at about 1430 hours complainant, Muhammad Yameen, set the law into motion by lodging above-stated F.I.R. stating therein that on the eventful day at about 1-00 p.m. while he along with his brother Muhammad Amin, father Ghulam Mustafa and son of his sister Feroze Ali, Gulfam Ali was sitting in the house, at about 1-30 p.m. Wali Muhammad, Abdul Sattar, Farooq Ali and Sadaqat Ali, Najamuddin, Orangzeb. Ghulam Sarwar, Ghulam Shabbir, Irshad Charai, Safeer, Irshad, Mazhar Brohi came to their house. Out of above-stated "persons, Mazhar Brohi. Abudl Sattar, Orangzeb and Ghulam Sarwar had guns, Sadaqat Ali and Farooq Ali were armed with mousers and others had Lathies. Wali Muhammad and Abdul Sattar asked the complainant party as to why they had got restored their electricity connection which was disconnected on account of non-payment of bills, hence they will not spare the complainant party. Abdul Sattar 'with the intent to kill straightaway fired at Muhammad Amin, brother of the complainant which hit him on fore-head who fell down after crying. Other accused also fired at the complainant party with intention of killing the complainant party but they took shelter behind the shade of their house. It is further stated that there were marks of bullets on the front of their house and on the doors. The complainant party raised cries for help and in defence complainant also resorted to firing with his licensed gun but the accused persons made their escape good while firing in air. It is stated in the F.I.R. that brain of deceased Muhammad Amin was seen coming out due to firing and he died after some time. The complainant while leaving others at the dead body approached the police station where F.I.R. as above, was registered. The matter was investigated by I.O. Assistant Sub-Inspector Buxial Khan Khokhar and S.I.P./S.H.O. Hussain Bux Mahar wherein they came to-the conclusion that this incident occurred in daylight time in the heart of village Mitho Babar consisting 200/250.houses and people of different castes such as Babar, Narejo, Brohi, Misrani and others are though residing but, surprisingly no independent witness came forward to give evidence except father brother and nephew of the deceased Muhammad Amin who can be defined as interested witnesses. However, statements under section 164, Cr.P.C., and in the light of those statements seven accused persons namely Wali Muhammad, Sadaqat, Farooq, Irshad, Ghulam Shabbir, Safeer Ali and Najumuddin were let off under section 497, Cr.P.C., whereas challan was submitted in the Court of law against four accused persons namely Orangzeb, Ghulam Sarwar, Irshad Misrani and Mazar Brohi showing them in custody while rest being Abdul Sattar was shown as absconder and seven innocent persons in Column No.11 of the challan sheet. However, upon the directions of Additional Inspector General of Police, Hyderabad Region, matter was re-investigated by the D.P.O. Investigation Dadu through S.I.P. Ameer Bux Panhwar, Incharge Investigation Team K.N. Shah and on the basis of whose thorough investigation the D.P.O., Investigation Dadu came to the conclusion that the involvement of the applicant in this case has not been proved as the investigation reveals that he has been involved by the complainant party due to old enmity, which has been proved. However, he could not have been apprehended as yet, meanwhile it is suggested that the subsequent challan be produced before concerned Court of law while showing the name of absconder Abdul, Sattar Narejo (applicant herein) under Column 11 of the charge sheet including the evidence which has been collected during investigation. I have heard M/s Raza Hashmi and Hassan Sabir Advocates, appearing on behalf of the applicant and Mr. Sohail Jabbar, learned counsel appearing for the State. It has been contended by the learned counsel for the applicant that the case against the applicant is false who has been involved due to enmity and malice which has also been reported in the report of D.P.O. Investigation Dadu who got the matter re-investigated through S.I.P. Ameer Bux Panhwar Incharge Investigation Team K.N. Shah upon the orders of Additional Inspector-General of Police Hyderabad Region. It has also been contended that the applicant apprehends his arrest at the hands of Khairpur Nathan Shah police who at the behest of the complainant party is bent upon due to political enmity to cause the arrest of the applicant and it has been argued that in case of his unwarranted arrest due to malafides and ulterior motives of the complainant, the applicant is likely to suffer serious harassment and humiliation as he has been totally dislodged from his own city due to political rivalry. It has further been argued that applicant' name has been shown in the instant case due to political enmity. It has also been contended that medical certificate issued by Dr. Arbab Ali Shah, Medical Hospital K.N. Shah clearly certifies that the injury sustained by the deceased could have been caused by the rifle whereas according to the contents of the F.I.R. the applicant was carrying mouser. According to the learned counsel the contradiction in medical certificate and oral evidence itself creates a doubt that the applicant has falsely been involved in the case mala fidely. It has, further been contended that the story as narrated in the F.I.R. seems to be an improbable and false one based on mala fide and ulterior motive on the part of the complainant and police. It has, also, been contended that applicant is a respectable person and if he is arrested by the police, he shall be insulted, humiliated and tortured by the police. In support of his contentions he has relied upon the cases of Muhammad Jawed v. The State (NLR 1996 Cr.LJ 198) and Muhammad Anwar v. The State (NLR 1999 Criminal 704). So far as the office objection relating to the direct approach to this Court is concerned, learned counsel have argued that it is true that propriety demands that applicant should have approached the original Court i.e. Sessions Court Dadu but it is not an absolute rule as depending upon the compelling circumstances of each case and if such an application has been moved before this Court and has entertained by granting interim pre-arrest bail, then instead of dismissing the same on technical grounds it may be disposed of on merits. He, in this regard, has relied upon the case of Rais Wazir Ahmed v. The State (2004 SCMR 1167). Learned counsel for the State concedes to the above stated factual as well as legal position and expressed his no objection to the confirmation of pre-arrest bail granted to the applicant on 12-2-2007. I have given my anxious consideration to the arguments of the respective parties and perused the record. Perusal of-record reveals that not only the case has got history of previous enmity in relation with the purchase of land cost of which was to be paid by the complainant party to the applicant party but also there is political background as well as re-investigation of matter reveals that even there is contradiction between oral and medical evidence as opined by the Medical Officer, Taluka Hospital. K.N. Shah. These circumstances lead me to hold that the case of the prosecution against applicant Abdul Sattar is that of further enquiry who is entitled to grant of bail. In the light of the above discussion as well as in view of no objection expressed by the learned counsel for the State. I confirm interim pre-arrest bail granted to the applicant, Abdul Sattar, on 12-2-2007, on the same terms and conditions. Criminal Bail Application No.112 A of 2007 stands disposed of. H.B.T./A-66/K Bail confirmed.