2008 PLP 1410 (MLD)

DR. QAMMARUDDIN BOHRA, J.

This criminal bail application has been filed against the rejection of the bail application by 1st Additional Sessions Judge, Karachi, Malir, dated 23-4-2008 in Criminal Bail Application in Session case No.102 of 2008 relating to F.I.R. No. 14 of 2008 under section 302/34, P.P.C. police station Sukhan. Brief facts of the case according to the F.I.R. are that the complainant Haji Dil Muhammad had registered an F.I.R. on 9-2-2008, at 2345 hours at Police Station Sukhan, wherein he had stated that he is residing at Juma Himayati Goth, Bhains Colony, Karachi with his wife and other family members and is running his own. business. His nephew Soomar alias Dadha son of Kala Khan aged about 25-26 years is also residing with him. His nephew is serving Karachi Export Processing Zone at Z and M Factory. On 9-2-2008, his nephew, as usual went for his duty at 7-00 p.m. He was present in his office Bhains Colony. His cousin Rustam informed him through telephone that his nephew Soomar had received bullet injury at Export Processing Zone and lying injured condition at Bahins Colony Memon Hospital. On this information, he went to the Memon Hospital, where she saw the dead body of his nephew, who received a bullet injury on his right eye. The dead body of his nephew was taken by him and other relative for post-mortem at Jinnah Hospital Karachi. After the post-mortem, he inquired about the injury of his nephew. He was informed by one Sajid Khan, Muhammad Imtiaz, Mushtaq Ahmed that they were coming in their motorcycle from the company after closing of factory along with Soomar alias Dadha. When they reached at 0705 hours, near Jamila Masjid, Suleman and Rashid were going on foot in front of them, as soon as they crossed them, Suleman called them loudly, on which Soomar stopped the motorcycle and saw towards backside Suleman made fire upon the Soomar with his pistol, which hit near right side of his eye, who sustained injury and fell down. Subsequently, he succumbed to his injury. Suleman and Rashid made their escape good from the scene of offence. Thereafter, he registered the case against the above named persons. I have heard Mr. Shamsul Hadi learned counsel for the applicant/accused, Mr. Saleem Akhtar learned Additional Prosecutor General Sindh as well as Ms. Afsheen Aman learned counsel for the State. The learned counsel for the applicant/accused argued that in the F.I.R. the applicant/accused has been alleged to be present at the place of occurrence and there is no accusation against him and mere presence at the place of incident does not constitute any 'offence. Nothing incriminating articles have been recovered from the possession of the present accused/applicant. He further contended that the star witnesses, namely Sajid Khan, Muhammad Imtiaz and Mushtaq have neither implicated the present accused in their 161, Cr.P.C. statements nor in the 164, Cr.P.C. statements, which clearly shows that the present applicant/ accused is totally innocent. The learned Additional Prosecutor General Sindh did not oppose the bail application, whereas learned State Counsel stated that there is common intention as presence of the applicant/accused at the place of wardat is not disputed. According to the F.I.R. the main accused Suleman Khan has been accused for firing on the deceased on his eyes and that only one injury caused his death, whereas, the fire-arm is recovered from the main accused Suleman Khan and star witnesses/eyewitnesses namely Sajid Khan, Muhammad Imtiaz and Mushtaq all implicated the main accused Suleman in their 161, Cr.P.C. statement and in 164, Cr.P.C. statement. Admittedly, the complainant, who lodged the report on the information, is not eye-witnesses of the incident. Admittedly, the above named witnesses have not alleged the present applicant/accused for firing or armed with T.T. pistol. They only stated that he was present with main accused. According to the counsel for the applicant the Investigating Officer has mentioned in the challan that there is no evidence against the present applicant/accused except that he has been challaned due to his presence treating the common intention. There are number of decision that common intention always borne out from the actions. Moreover, the applicant/accused is not alleged for any offence and there is no mens rea against him so far with the prosecution, as such, the case of applicant/accused is of further inquiry and he is admitted on bail subject to furnishing of solvent surety in the sum of Rs.100,000 (Rupees one lac only) with P.R. bonds in the like amount to the satisfaction of the trial Court. Announced in open Court. M.B.A./M-86/K Bail granted.