Haji Munir Laghari (Applicant) VS The State (Respondent)

ORDER SHEET

ORDER SHEET

IN THE HIGH COURT OF SINDH BENCH AT SUKKUR

Cr.B.A.No.S-204 of 2010

For hearing

ORDER

Mr.Ghulam Muhammad Khan Durrani Advocate for applicant.

Mr.Shyam Lal A.P.G. for the state.

Applicant Haji Munir Leghari is facing trial before the court of learned Additional Sessions Judge Kandiaro in Crime No.385/2008 for falling offence u/s 302, 34 and 403 PPC.

The prosecution case in emphasize is that Muhamamd Ramzan Brohi is two number brother of complainant and they are six brothers in all and they have business of seasonal crop. There was a dispute in between deceased Muhammad Ramzan and Niaz Muhammad @ Nazu Leghari and dispute was settled between deceased Muhammad Ramzan and Niaz Muhammad @ Nazu. On the night of 16.11.2008 at 8:00 p.m. complainant alongwith his brother Alam Brohi and deceased Muhammad Ramzan Brohi were available at their shop, whereas Niaz Muhammad @ Nazu came and asked deceased Muhammad Ramzan to accompany with him to his house as some guests are available and he wants that deceased who accompany with him for dinner. The complainant further stated that he alongwith his brother Alam, maternal nephew Muhammad Sharif, deceased Muhammad Ramzan accompanied Niaz Muhammad @ Nazu and went to the house of Khan Muhammad Leghari, where Haji Munir and two unknown persons were also available there. Whereupon Niaz Muhammad @ Nazu asked the complainant to leave deceased Muhammad Ramzan and after taking dinner and chit chatting he would returned back. Niaz Muhammad @ Nazu alongwith deceased Muhammad Ramzan went towards his house but deceased Muhammad Ramzan did not return back. Whereupon complainant alongwith his brother Muhammad Alam and maternal nephew Muhamamd Shareef went to the house of Niaz Muhammad @ Nazu at 8:00 a.m. where they reached near the house of Khan Muhammad Leghari in the sugarcane crop they saw that dead body of Ramzan was lying and having injuries on forehead and cash of Rs.10,000/-, one golden chain and mobile phone were also missing. The complainant further stated that they searched for Niaz Muhammad @ Nazu but he was not available in his house so complainant left his brother Muhammad Alam and maternal nephew Muhammad Sharif at the dead body of deceased Muhammad Ramzan and lodge his FIR with police.

During investigation police recorded 161 Cr.P.C. statements of the witnesses on 25th November 2008 whereupon all the witnesses have supported the contentions of FIR.

I have heard the learned counsel for the applicant and Mr.Shyam Lal A.P.G. for the state and perused the FIR and relevant record available with the bail application.

Learned counsel for the applicant argued that this is an un-witnessed incident and only allegation against the applicant is that the deceased was last seen in company of the applicant and others. Learned counsel further argued that nothing incriminating was recovered during investigation. The 161 Cr.P.C. statements of the witnesses recorded after 8 days of the incident without any plausible explanation. Learned counsel for the applicant relied upon the case of Gadal vs. The state 2010 P Cr. L J 280 and contended that the case of the applicant falls under the purview of Section 497(2) Cr.P.C.

Mr.Shyam Lal learned A.P.G. for the state argued that the FIR is prompt and witnesses have supported the contentions of the complainant in 161 Cr.P.C. The police deliberately in connivance of the applicant/ accused has recorded the statement u/s 161 Cr.P.C. with the delay of 8 days which cannot be considered at bail stage. Learned A.P.G. has relied upon the case of Sajid and 2 others vs. The state 1998 P Cr. L J 1455 and contended that at this stage the applicant does not deserve grant of bail.

I have considered submissions advanced at the bar. It is admitted fact that the name of the applicant do not transpire in the FIR and allegation against the applicant is of last seen which is to be considered after adducing evidence at the trial. It is also admitted fact that nothing incriminating was recovered during investigation from the possession of the applicant. The case of Sajid and two others supra facts are that the deceased was subjected to carnal intercourse and the witnesses have seen the deceased lastly in the company of the applicant/accused and there was no enmity in between the parties to implicate the applicant. The facts in the case of Gadal supra are that on the instigation of Gadal accused Barkat Ali fired from his kilashnikove which hit at Mir Muhammad, who succumbed to the injuries and died at the spot. The case of Gadal is distinguishable from the facts and circumstances of this case. However, the case of Sajid and two others supra relied by the learned A.P.G. for the state are distinguishable from the facts and circumstances of the case. In the present case allegations are against Niaz Muhammad @ Nazu that by taken away the deceased with him and there is no evidence available on record that the deceased was seen lastly in company of applicant Munir. In these circumstances the case of applicant Nunir falls under the purview of Section 497(2) Cr.P.C. Hence I grant bail to the applicant subject to furnishing solvent surety in the sum of Rs.200,000/- (Two lacs) and P.R. bond in the like amount to the satisfaction of the learned trial court.

JUDGE