2013 PLP 1886 (YLR)

NAIMATULLAH PHULPOTO, J.

Applicants/accused Arz Muhammad and Baqa Muhammad, both sons of Karamullah, by caste Noonari, seek bail in Crime No.55 of 2012, registered against the accused at Police Station Thul on 20-4-2012, for offences under sections 337-A(i), -A(ii), -F(i), 506/2, 147, 148, 149, 504, P.P.C. 2 Brief facts of the prosecution case as disclosed in the F.I.R are that prior to this incident accused Fida Hussain and others had kidnapped Mst. Shahida, the sister of the complainant, such case was registered at Police Station Thul. On the day of incident complainant along with his brother Khalid Hussain, father Muhammad Mithal and uncle Hakim Ali were returning back from Thul after completing the work. At 6-30 p.m., they reached at Link road near village Warisdino, seven accused persons appeared there, they were identified to be (1) Muhammad Hassan, armed with gun, (2) Fida Hussain, (3) Saddam Hussain, (4) Shah Muhammad, (5) Arz Muhammad, (6) Baqa Muhammad, all sons of Karamullah, by caste Noonari, all five armed with lathies, and one unidentified accused. Complainant has stated that accused Fida Hussain abused to the complainant party as to why he was not withdrawing from the case. Thereafter, he caused a lathi blow to P.W. Khalid Hussain, which hit him at his nose; accused Sadam Hussain caused lathi blow, which hit to Khalid Hussain at ear and he fell down. Remaining accused caused lathi blows to complainant party. The unidentified accused, who was carrying gun, aimed his weapon. Cries were raised by the complainant party, which attracted the persons of the locality and accused succeeded to run away. Complainant party saw that injured persons had received injuries and complainant took the injured persons to the police station and F.I.R of the above incident was lodged under above-referred sections.

3. During investigation accused Arz Muhammad, Baqa Muhammad, Muhammad Hassan and Saddam Hussain were arrested. After completion of the investigation challan was submitted against the accused under sections 337-A(i), -A(ii), -F(i), 506/2, 147, 148, 149, P.P.C. Bail application was moved on behalf of accused Arz Muhammad and Baqa Muhammad in the Court of learned Civil Judge and Judicial Magistrate, Thul, the same was rejected by him vide order dated 21-5-2012. Thereafter, applicants approached to the learned Sessions Judge, Jacobabad. Bail application was heard by learned 1st Additional Sessions Judge, Jacobabad and the same was rejected vide order dated 17-7-2012. Thereafter, applicants approached to this Court.

4. Mr. Nisar Ahmed Abro, learned advocate for applicants contended that there are general allegations against the applicants/accused. Vicarious liability shall be determined at trial and alleged offence does not fall within the prohibitory clause of section 497, Cr.P.C. He has further submitted that investigation is complete, case has already been challaned, there is no question of tampering with the evidence. Applicants are behind the bars since last 8 months. He submitted that basic principle is bail, not jail.

5. Mr. Imtiaz Ahmed Shahani, learned State Counsel, conceded to the contentions raised by learned advocate for applicants and raised no objection.

6. Mr. Muhammad Saleem Jessar, learned advocate for complainant, opposed the bail application and stated that no doubt allegations are not specific but vicarious liability is there and applicants/accused had motive to commit the alleged offence. He has further submitted that in case bail is granted to the accused, they will repeat the offence and compel the complainant party to withdraw from the criminal case which is pending against the accused.

7. I have carefully heard the learned counsel for the parties and perused the relevant record.

8. Prima facie, there are general allegations against the applicants/accused Arz Muhammad and Baqa Muhammad in the commission of offence. Vicarious liability of the applicants/accused is yet to be determined at the trial. Investigation is complete, applicants/accused are no more required for investigation. Case has already been challaned. Applicants/accused are behind the bars since last 8 months. Learned State Counsel has also recorded no objection. No useful purpose will be served by detaining the applicants/accused in the jail for the indefinite period. Basic rule in such cases is bail not jail. I have no hesitation to hold that the case of applicants/accused requires further enquiry as contemplated under subsection (2) of section 497, Cr.P.C. Therefore, concession of bail is extended to the applicants subject to their furnishing solvent surety in the sum of Rs.100,000 each and P.R bond in the like amount to the satisfaction of trial Court.

9. Needless to mention that above observations are tentative in nature and the trial Court shall not be influenced, in any manner, while deciding the case. MWA/A-1/K Bail granted.