2026 PLP 615 (YLR)

Amjad Ali Bohio, J.

After the dismissal of the bail application in Sessions Case No. 838 of 2023 by the learned Additional Sessions Judge-I/MCTC, Khairpur, the applicants/ accused, namely Raja and Ghulam Akbar, both sons of Naseer Khan Mari, have filed the instant bail application seeking post-arrest bail in Crime No. 151 of 2023, registered at Police Station B-Section, Khairpur, for offences punishable under Sections 302, 452, 109, and 34 of the Pakistan Penal Code, 1860.

2. As per the prosecution's case, complainant Mst. Zar Bano lodged an FIR at Police Station B-Section, Khairpur, alleging that she was previously married to one Azizullah Mari, from whom she had four children, two sons, namely Dilshad Ali and Irshad Ali, and two daughters, Ramshad Bano and Shamshad Khatoon. After the death of her husband, approximately three years prior to the incident, she contracted a second marriage with Niaz Hussain Janwari, with the consent and involvement of her brothers, Aijaz Ali, Raja, and Ghulam Akbar. Following her second marriage, the complainant, along with her son Dilshad Ali, began residing at Mill Colony, Khairpur. On 02.05.2023, at about 1230 hours (noon), the complainant, her son Dilshad Ali, her cousin Muhammad Juman (son of Ghulam Ali Mari), her husband's brother Allah Wadhayo (son of Muhammad Peeral Mari), and other family members were present at the house of Dilshad Ali, situated in Mill Colony, Khairpur. At that time, three accused persons, Aijaz Ali, Raja, and Ghulam Akbar, all sons of Naseer Khan Mari and residents of Choondko, Taluka Nara, allegedly arrived at the house armed with pistols. The accused persons forcibly entered the house and, upon entry, pointed their weapons at the family members while shouting hakals (verbal threats), directing everyone to remain silent. Fearing for their lives due to the presence of firearms, the complainant and others offered no resistance. It is further alleged that accused Aijaz Ali addressed the complainant's son, Dilshad Ali, stating that they had previously demanded money from him, which he had failed to pay, and declared that they would now kill him. Immediately after making this threat, accused Aijaz Ali allegedly fired a single shot at Dilshad Ali with the intention to commit his murder. The bullet struck Dilshad Ali on the left side of his nose and exited through the right side of his head, causing him to fall to the ground while bleeding profusely. The complainant and other family members witnessed the entire incident. Following the gunshot, all three accused fled from the house towards the east. The complainant and witnesses immediately checked on Dilshad Ali and found that he had succumbed to the injury at the spot. Thereafter, they transported the deceased's body to Police Station B-Section, Khairpur, where they obtained a referral letter for medico-legal formalities. The body was then taken to the hospital for post-mortem examination and subsequently brought home for burial. After completion of the funeral rites, the complainant once again approached the police station and lodged the present FIR on 03.05.2023 at 1400 hours.

3. Learned counsel for the applicants/accused contended that both applicants have been falsely implicated in the present case due to the mala fide intention of the complainant. It was argued that the specific role of causing the fatal firearm injury has been attributed solely to co-accused Aijaz Ali, whereas the applicants have merely been assigned a generalized role of presence at the scene of occurrence. Learned counsel submitted that mere presence, unaccompanied by any overt act, does not constitute active participation in the commission of the alleged offence. It was further argued that both eye-witnesses cited in the FIR are closely related to the deceased, and no independent witness has been associated by the prosecution, which renders the prosecution story doubtful. Learned counsel also pointed out that there is an unexplained delay of one day in lodging the FIR, despite the police station being situated at a distance of only about two kilometers from the place of incident, which further undermines the credibility of the prosecution version. He added that the challan has already been submitted, and the applicants are no longer required for investigation; therefore, their continued detention serves no useful purpose. In conclusion, learned counsel prayed for the grant of post-arrest bail to the applicants.

4. Conversely, learned Additional Prosecutor General, duly assisted by learned counsel for the complainant, opposed the bail plea and argued that the applicants are specifically named in the FIR with a clear allegation of having committed armed trespass into the complainant's house along with the co-accused, culminating in the brutal murder of an innocent young man. It was emphasized that the applicants acted in furtherance of their common intention and facilitated the commission of the offence by their active participation, thereby attracting the provisions of Sections 109 and 34, Pakistan Penal Code. Learned DPG further argued that the alleged offence is of a heinous nature, carrying severe punishment, and that no ground for further inquiry within the meaning of Section 497(2), Cr.P.C., is made out. Hence, he strongly opposed the prayer for bail.

5. I have heard learned counsel for the applicants/accused, learned Additional Prosecutor General, duly assisted by learned counsel for the complainant, and have carefully perused the material available on record.

6. Perusal of the record reveals that although the applicants are nominated in the FIR, the fact remains that no specific role of firing upon the deceased has been attributed to them. According to the prosecution's own case, it was co-accused Aijaz Ali who allegedly fired the shot that caused the death of the deceased, whereas the applicants were only assigned the role of providing cover to the main accused. It is a well-settled principle of law that mere presence of an accused at the scene of occurrence is not sufficient to hold him responsible for the commission of the offence unless the prosecution succeeds in establishing that he shared common intention or common object with his co-accused, or that he otherwise facilitated the commission of the crime. Since the applicants were allegedly empty-handed at the time of occurrence, they could not have rendered any effective assistance to the principal accused. On the contrary, they might have exposed themselves to potential harm had there been any retaliation or counter-attack from the other side. Furthermore, it has been the consistent view of the superior Courts that where no overt act is ascribed to an accused, a lenient view should be taken in the matter of bail. Reliance in this regard is placed upon the cases of Muhammad Khan alias Muhammad Bux v. The State (2015 PCr.LJ 69) and Muhammad Tanveer v. The State (2014 PCr.LJ 1096), wherein bail was granted to accused persons whose mere presence at the time of occurrence was alleged without any active participation in the commission of the offence.

7. It is also observed that in our society there exists a prevailing tendency to implicate multiple members of the same family in criminal cases with the intent to blackmail or exert pressure upon them. The allegations against the present applicants are limited to the assertion that, at the time of the incident, they provided cover to the principal accused during the commission of the offence. Reliance is placed upon the case of Tariq Zia v. The State (2003 SCMR 958), wherein the Hon'ble Supreme Court was pleased to grant bail to accused on the ground that: "....The contents of the FIR show that the accused was empty-handed and has not played any active/overt act in the commission of the offence.-

8. It has been alleged that a dispute had arisen over a monetary transaction between co-accused Aijaz Ali and the deceased, Dilshad Ali. The present applicants are the brothers of the said co-accused. There is a delay of more than 24 hours in lodging the FIR, which has been reasonably explained on the ground that the complainant and her family members were engaged in attending to the deceased's body, as well as in the funeral and condolence proceedings. It is further alleged that the applicants/accused were armed with pistols at the time of occurrence; however, no overt act has been attributed to them in connection with the actual commission of the murder of Dilshad Ali. Although the applicants are alleged to have accompanied the principal accused, the complainant has not assigned any specific or active role to them in the perpetration of the offence. In the case of Muhammad Shafi and others v. The State (2016 SCMR 1593), the Honourable Supreme Court of Pakistan, while allowing bail to the accused in similar circumstances, was pleased to hold that as under: "After hearing the learned counsel for the parties and going through the record it has been observed by us that admittedly both the present petitioners were empty-handed during the incident in issue and they had not caused any injury to any person during the same. According to the prosecution the petitioners had raised a joint lalkara instigating their co-accused to launch an assault upon the complainant party whereafter as many as three members of the complainant party had been done to death. It is not denied that both the present petitioners are elders of their co-accused who had fired at the deceased and there is a background of enmity between the parties based upon a previous murder. In that backdrop spreading the net wide by the complainant party so as to falsely entangle the petitioners in the present criminal case appears to be a possibility which cannot safely be ruled out of consideration at this stage. The investigation of this case has already been finalized, a Challan has been submitted, the petitioners' trial has commenced and statements of many prosecution witnesses have been recorded and, thus, physical custody of the petitioners is no longer required at this stage and their continued incarceration is not likely to serve any beneficial purpose. For all these reasons we have found that the case against the petitioners calls for further inquiry into their guilt within the purview of subsection (2) of section 497, Cr.P.C.

9. A tentative and prima facie assessment of the material available on record indicates the involvement of the applicants/accused in the alleged offence; however, the precise extent of their participation can only be determined after the recording of evidence from both sides. Until such determination, the case of the present applicants/accused squarely falls within the ambit of further inquiry as contemplated under Section 497(2), Cr.P.C.

10. In view of the foregoing discussion, the instant application for grant of post-arrest bail filed by the applicants/accused, namely Raja and Ghulam Akbar, both sons of Naseer Khan Mari, is hereby allowed. They are admitted to bail subject to their furnishing solvent surety in the sum of Rs.200,000/- (Rupees Two Hundred Thousand only) each, together with a personal recognizance bond in the like amount, to the satisfaction of the trial Court.

11. The observations made hereinabove are purely tentative in nature and shall not prejudice or influence the trial Court while deciding the case on merits.

12. Above are the reasons of short order announced on 06.10.2025. JK/R-18/Sindh Application allowed.