2016 PLP 112 (YLRN)

S. 497(2)

Penal Code (XLV of 1860), Ss.302, 337-H(2), 148 & 149

Qatl-i-amd, hurt by rash or negligent act, rioting, common object

Bail, grant of

Further inquiry

Allegation against accused was that he was having Kalashnikov while co-accused, was having pistol, who fired pistol's shots at complainant's brother who died on account of the same

Complainant, specifically claimed in the FIR that said co-accused had murdered his brother

Neither any overt act had been attributed to accused, nor any allegation had been levelled against him

Delay of about three days in lodging FIR, was without any plausible explanation

Dead body was brought by the complainant party to the Hospital, where body was seen by some Doctors; and thereafter complainant took and buried the dead body themselves, which was without any legal steps and postmortem

Challan had been submitted, but recovery of Kalashnikov had not been effected from accused, who had been arrested afterwards

Complainant and his mother filed their respective affidavits, stating that they had no objection for grant of bail to accused; as they were in process to hold settlement with accused

Complainant and his mother had also filed their respective affidavits, wherein they specifically stated that accused, had not caused any injury to or committed murder of the deceased; and that they had no objection for grant of bail to accused

Case of accused being one of further inquiry in respect of his guilt, within the purview of subsection (2) of S.497, Cr.P.C., bail was granted to accused. [Para. 3 of the judgment] 2014 SCMR 1347; 1996 SCMR 1654, 1125; 2005 YLR 850 and 2005 PCr.LJ 652 rel. Syed Madad Ali Shah for Applicant. Shakeel Ahmed Zai for the Complainant. Syed Meeral Shah, Deputy Prosecutor General, Sindh for the State. ORDER ANWAR HUSSAIN, J.

Through this Bail Application, Applicant Naeem-ul-Arfeen seeks Bail After Arrest after rejection of his Bail Application vide Order dated 15.10.2015, passed by learned 2nd Additional Sessions Judge, Shaheed Benazirabad, in S.C. No.768/2013, bearing Crime/FIR No.41/2013 of Police Station Airport, Shaheed Benazirabad, Under sections 302, 337-H(2), 148, and 149, P.P.C.

2. The alleged story of the prosecution briefly is that some named and unnamed persons, including present Applicant/Accused (named in FIR) and one Younus, having Kalashnikov and Pistol, respectively, and others having M.Q.M. flags came across on a way to the Complainant Party; Younus, inquired from the Complainant, who said that they are Sindhis' on that Younus straight away fired pistol shots to the Complainant's brother, who sustained head injuries and fell down. The Accused Party after firing in air run away from the scene. Complainant alleged that Accused Younus and one unknown person have murdered his brother by firing from pistol. (a) The allegation against the Applicant/Accused is that he was having Kalashnikov in his hand while Co-accused Younus, having pistol in his hand and fired pistol's shots at Complainant's brother, who died on account of the same. Complainant specifically claimed in FIR that said co-accused has murdered his brother; (b) As neither any overt act has been attributed to the present Applicant/ Accused nor any allegation has been leveled against him, for murdering the Deceased. Reliance is placed on 2014 SCMR 1347, 1996 SCMR 1654 and 1125, 2005 YLR 850 (Kar.) and 2005 PCr.LJ 652 (Kar.). (c) The alleged incident is of 12th May, 2013 at 2.30 p.m, and instant FIR was lodged on 15.05.2013, at 8.00 p.m. As such there is delay of about three days and that too without any plausible explanation. (d) As per FIR, Dead Body was brrought by Complainant Party to the Peoples Medical College Hospital, Nawabshah, where body was seen by some Doctors and thereafter Complainant took and buried the Dead Body themselves, which is without legal steps and post mortem. (e) That the Challan has been submitted, but recovery of Kalashnikov has not been effected from the Applicant/Accused who has been arrested afterwards i.e. on 21.09.2015. (f) The Complainant and his Mother filed their respective Affidavits at bail stage in Sessions Case before the learned Trial Court and stated that they have no objection for grant of bail to the Applicant/ Accused as they are in process to hold settlement with the Applicant/Accused. (g) The Complainant and his Mother have also filed their respective Affidavits in this Bail Application, wherein specifically stated that the Applicant/Accused has not caused any injury to or committed murder of the Deceased and they have got no objection for grant of bail to the Applicant/Accused. Reliance is plaped on 2008 MLD 1051 (Kar.), 2003 MLD 1665 (Kar.) and 2013 PCr.LJ 398 (Kar.). For the reasons to be recorded later-on, this Bail Application is allowed. Accused is enlarged on bail against the surety of Rs.100,000/- (Rupees One Lac only) to the satisfaction of trial court.

5. The above observations are tentative in nature and shall not cause any prejudice to the trial in the matter.

6. Before parting with this order, it would be pertinent to mention here that instant Bail Application has been disposed of by way of said Order, as per Shorter Format, in view of the order of the Honourable Supreme Court of Pakistan in the case of Muhammad Shakeel reported in PLD 2014 SC

458. HBT/N-9/Sindh Bail grante