2025 PLP 2648 (YLR)

Shamsuddin Abbasi, J.

Applicant Roshan son of Khuda Bux Gadehi seeks pre-arrest bail in FIR No. 162/2023 of Police Station Sobhodero for an offence under Sections 302, 324, 147, 148, 149, 337-H(2), P.P.C after rejection of his bail plea by learned trial Court vide order dated 11.06.2024. It is alleged in the FIR that applicant along with co-accused, armed with hatchet, came at the scene of offence and caused a sharp side hatchet blow to deceased Ashique Ali on his neck.

2. Learned Counsel for the applicant submits that applicant is innocent and he has been falsely implicated in this case due to mala fide intention and ulterior motives; that there is a civil dispute between the parties and he has purchased an agricultural land, whereby complainant party was annoyed with the applicant and, due to that civil dispute, he has been implicated; that during investigation, applicant was found innocent and his case was recommended to place him in column No. II of the challan sheet. At this juncture, learned Counsel for the applicant requests for adjournment on the ground that he wants to file some documents before this Court. Record shows that applicant was admitted on interim pre-arrest bail vide order dated 30.09.2024 and matter was adjourned for one or the other reason on 28.10.2024, 18.11.2024, 02.12.2024 and 30.12.2024. Counsel for the applicant still needs time to file some documents. Request of Counsel for the applicant is unjustified; therefore, his request for adjournment is turned down.

3. Learned Deputy Prosecutor General assisted by learned Counsel for the complainant submits that applicant is nominated in the promptly lodged FIR with specific role of causing sharp side hatchet blow to deceased Ashique Ali on his neck, and ocular version is corroborated by medical evidence. He further submits that PWs have supported the case of prosecution in their statements and applicant has not joined the investigation and question of recovery of crime weapon is involved; and applicant remained absconder for six months after rejection of his pre-arrest bail, therefore, his custody may be handed over to Investigating Officer to recover the alleged crime weapon. He has relied upon the case reported as 2022 SCMR 267, 2022 SCMR 363 and 2023 SCMR 1724.

4. Heard learned Counsel for the applicant, learned Counsel for the complainant, learned Deputy Prosecutor General, and perused the material available on record.

5. There is delay of five (05) hours in lodging of FIR as the alleged incident took place on 05.11.2023 at 06:00 pm, whereas, the FIR has been lodged on same day at 11:15 pm, but complainant has well explained the delay in his FIR on the ground that she shifted the deceased and injured Ghulam Rasool to hospital for treatment and, after getting postmortem, she lodged the FIR of the alleged incident. Applicant is nominated in the FIR with specific role of causing sharp side hatchet injury on the neck of deceased Ashique Ali. Per postmortem report, injury No.2, which is attributed to the applicant, is sufficient for cause of death. During investigation, prosecution witnesses have supported the case of complainant in their statements under Section 161, Cr.P.C. Record does not show that name of applicant was placed in column No. II in the interim challan nor in the final challan. Even otherwise, opinion of the police officer is not binding on the Courts. Sufficient material is available on the record, which connects the applicant in the alleged offence, which carries capital punishment.

6. Counsel for the applicant has mainly contended that mother of deceased Ashique Ali recorded her statement under Section 161, Cr.P.C, wherein she exonerated the applicant from the commission of the alleged offence, however, he admits that mother of deceased is not eye-witness of the case. Contention raised by Counsel for applicant on this aspect of the case amounts to be the deeper appreciation, which cannot be considered at this stage. The Hon'ble Supreme Court in the case of Mukhtar Ahmad v. The State and others (2016 SCMR 2064) has observed that the Hon'ble Supreme Court has repeatedly declared that the concession of pre-arrest bail cannot be allowed to an accused person unless the Court feels satisfied about seriousness of the accused person's assertion regarding his intended arrest being actuated by mala fide on the part of the complainant party or the local police. Similar view was taken by the Hon'ble Supreme Court in the cases of Gulshan Ali Solangi and others v. The State through P.G. Sindh (2020 SCMR 249), Abdul Aziz Memon v. The State (2020 SCMR 313) and Zarai Taraqiati Bank Limited through president and others v. Sarfraz Khan Jadoon and others (202: SCMR 1305).

7. No case of extra ordinary relief is made out. At the request of learned Deputy Prosecutor General, the applicant is taken into custody. His custody is handed over to the Investigating Officer for further investigation in accordance with law. Consequently, bail application is dismissed and ad-interim pre-arrest bail earlier granted to the applicant vide order dated 30.09.2024 is hereby recalled.

8. The bail application stands disposed of in the above terms. The observation made hereinabove is tentative in nature and case of applicant would not prejudice at the trial. He may file a post-arrest bail application and the trial Court will decide the same in accordance with law. MQ/R-4/Sindh Bail recalled.