2017 PLP 311 (YLRN)

SHAHNAWAZ TARIQ, J.

Through captioned criminal bail application, applicant Shahzeb has impugned order dated 20.06.2016, passed by the Court of 1st Additional Sessions Judge, Sukkur, whereby the earlier bail application filed by the applicant was declined.

2. Necessary facts spelt out from instant application are that complainant Shamsuddin lodged FIR No.43/2013 on 01.07.2013, at about 1330 hours, at Police Station Baiji Sharif regarding incident occurred on 01.07.2013 at 0800 hours. The averments of FIR are reproduced as under:-- "That my daughter Mst. Safia was married with Shahzeb, step-son of Ameer Bux, and was residing with him in the same house. Today, I along with my son Hakim and cousin Azeem, was standing near the house of Ameer Bux. At about 08.00 a.m., we heard cries of Mst. Safia from her house, and rushed there and saw that accused Ameer Bux, Mst. Samina, Rahib, Qamruddin, Sahib Din and Shahzeb, had forced down Mst. Safia on the ground and Mst. Samina was sitting over the chest of my daughter and she was forcibly administering agriculture pesticide to her with intention of murder and she was trembling. We entreated the accused not to do such cruel act and they fled away along with pesticide. My daughter was unconscious and frothing. We shifted her to Civil Hospital, hence instant FIR."

3. Learned Counsel for applicant contended that parties are close relatives to each other and three daughters of complainant are married with the sons of accused Amir Bux; that Khawand Bux son of accused Amir Bux has also lodged FIR No.45/2013 on same date and time with the similar allegations of administering the poisonous substance to Mst. Faiza; that FIR No.45/2013 has been disposed of by the Magistrate on 07.10.2013; that averments of both FIRs are similar in nature with same allegations which reflects ulterior motives on the part of complainant; that time of death is controverting to the post mortem report as victim was brought at hospital at 1.00 a.m. while post mortem was conducted at 8.30 p.m. on 02.07.2013; that police visited the place of wardat but did not collect the bottle of poisonous substance or any other incriminating article from the spot; that there are general allegations against the accused persons, while specific role of administering poisonous substance has been assigned to accused Mst. Samina who is fugitive from law; that general allegations attributed to present applicant require further inquiry; that if interim pre-arrest bail already granted is not confirmed, applicant will be arrested and humiliated by the police. Learned counsel has relied on 2008 YLR 2007, 2007 YLR 2009, 2010 MLD 984.

4. While controverting the above submissions, learned Counsel for complainant vehemently contended that applicant is nominated in FIR and role to catch hold the deceased is assigned to applicant: that parties are close relatives and disputed over matrimonial affairs; that medical report also reflects that deceased was died due to poisonous substance. Learned counsel relied upon case of 2013 SCMR 5124, 2011 SCMR 1070, 2008 SLJ 1321, 1999 SCMR 71 and 1996 SCMR 74.

5. Learned APG contended that charge has been framed against the accused persons since year 2014 but no private witnesses have been examined by the complainant before trial Court, hence trial Court may be directed to conclude the trial within a period of two months; that applicant has been assigned no specific role except a general role to catch hold the deceased.

6. Heard learned counsel for the parties and perused the record minutely which emanates that parties are close relatives and disputed over matrimonial affairs and factum of their animosity is reflected from the averments of the FIRs. It is significant to mention that at the same date and time FIRs No.43/2015 and 45/2015 were lodged at 0800 hours by both the parties against each other with similar allegations of administering poisonous substance to different ladies namely Mst. Safia and Mst. Faiza respectively, however, FIR No.45/2013 was disposed in "C"-Class. The averments of instant FIR are crystal clear that allegedly applicant along with other 5 co-accused forcibly got down Mst. Safia, while main allegations of administering poisonous substance is assigned to Mst. Samina who is fugitive from law. During investigation. Investigating Officer visited place of wardat but neither the bottle of poisonous substance nor any incriminating articles was recovered. No dying declaration of deceased was recorded by Medical Officer, while she expired in hospital during treatment on 02.7.2013 and per post mortem report no marks of violence were available at her neck. Indeed, charge has been framed in the year 2014, but since then complainant has not produced any witness to substantiate the allegations leveled against the accused, and prosecution has examined Investigating Officer only before the trial Court despite issuance of notices for procuring the attendance of witnesses. The demeanor of complainant reflects that he is not interested for early disposal of the case and he only wants to drag accused party in litigation. Moreover, after enlargement of applicant on ad interim pre-arrest bail by this Court, he has been appearing before the trial Court regularly and he neither misused the concession of bail nor frustrated the trial by using delaying tactics. There is apprehension of applicant being arrested by the police with ulterior motives as well as humiliation, thus recalling of ad interim pre-arrest bail already granted in favour of the applicant, will not serve any useful purpose.

7. Considering the above facts and circumstances, interim pre-arrest bail already granted to the applicant vide dated 21.7.2014 stands confirmed on the same terms and conditions. Applicant is directed to appear regularly before learned trial Court to face the trial. However, it is made clear that in case of non-appearance of the applicant or deliberate misuse the concession of bail, the trial Court would be at liberty to pass any appropriate order to initiate proceedings against accused and his surety in accordance with law. Trial Court is further directed to conclude the trial preferably within 90 days after receipt of copy of this order.

8. The observations made above are tentative in nature and learned trial Court shall decide the case strictly on merits. Bail application stands disposed of. WA/S-2/Sindh Order accordingly.