2019 PLP 4 (MLD)

AFTAB AHMED GORAR, J.

Through this bail application, the applicants/accused seek post arrest bail in Crime No.03/2018. Police Station Wahi Pandhi, District Dadu, under sections 302, 337-A (i), 337-F(i), 337-H(2), 114, 147, 148, 149, 504, P.P.C., after dismissal of their earlier bail application vide impugned order dated 07-04-2018, passed by learned Sessions Judge, Dadu.

2. As per prosecution case, allegation against the applicant/ accused is that on 01.02.2018, when complainant Qamaruddin alias Zamir Hussain Rind, Zahid Hussain, Aslam and Aijaz came at Datson stop near Moblink Tower Wahi Pandhi, co-accused Juman and applicant Dittal instigated other accused to kill them and on their instigation, co-accused Miran made pistol shot fire upon Zahid Hussain, which hit him at the back side knee of left leg and remaining accused made aerial firing while applicants Manthar and Saddam caused them Lathi blows. Injured Zahid Hussain succumbed to the injuries and expired.

3. Mr. Abdul Rasool Abbasi, learned counsel for the applicants Dittal alias Ali Ahmed and Manthar alias Noor Muhammad has argued that the applicants have been falsely implicated in this case on the basis of enmity with the complainant. He further contended that allegation against the applicant Dittal is of instigation only while applicant Manthar is shown armed with lathi and no active role has been ascribed to the present applicants in the FIR; that the direct role is attributed to co-accused Miran, that incident took place at Datson Stop but no independent witness has been cited; that all PWs are interested; that simple presence of applicants has been shown; that the vicarious liability with the main accused, if any, can be determined by the trial Court during the trial. He further contended that the applicants are behind the bars and no fruitful purpose would be served if they are kept in Jail for an indefinite period while there are reasons to believe that the applicants have made their case for further inquiry. In support of his contentions, he relies upon cases of 'Shabbir v. The State' [2003 MLD 1715 (Karachi)], 'Mumtaz Hussain and 5 others v. The State' [1996 SCMR 1125], 'Abdul Majeed v. Syed Shahid Hussain Shah and another' [2017 YLR 1739], 'Qurban Ali v. The State' [2017 SCMR 279], 'Mubarak v. The State' [2018 YLR 1655] and 'Shah Zaman v. The State' [2018 YLR 1800].

4. Mr. Safdar Ali Charan advocate representing the applicant Sadam has adopted the same arguments as advanced by Mr. Abdul Rasool Abbasi, advocate.

5. Mr. Sikandar Ali Soomro advocate for complainant has contended that sharing vicarious liability of applicant with the main accused under section 34, P.P.C. is very much concerned in the instant case and presence of the applicants at the scene shows preplanned concert in furtherance of common object with principal accused, therefore, prima facie, case exists against the applicants under section 302, P.P.C., which carries capital punishment. He contends that the co-accused are still fugitive from law and if the present applicants are admitted to bail, there is also apprehension of their absconsion. He lastly contended that the applicants do not deserve for concession of bail and prays for dismissal of their bail plea. In support of his contentions, he has relied upon the cases of 'Gulzar Khoso v. The State' [2006 PCr.LJ 1984], 'Mulo Ahmed v. The State' [2011 MLD 1171], 'Mehbob Ali Shah v. The State' [2014 MLD 1471], 'Shahzadi Sonia v. The State' [2014 PCr.LJ 630] and 'Khurram Raza v. The State' [2008 MLD 547 Lahore].

6. Learned A.P.G. for the State supports the contentions advance by the counsel for the complainant. However, she admits that there is no active role of the applicants/accused.

7. I have considered the submissions advanced by the counsel for parties and have gone through the material available on the record as well as cited case laws.

8. Admittedly the applicants are charged with the offence punishable with capital punishment falling within the ambit of prohibitory clause under section 497(1), Cr.P.C., however, the bail cannot be granted to the applicants when if there appear sufficient grounds to establish their connection with the commission of the offence. No active role of the applicants is alleged in the instant case, prima facie, their sharing vicarious liability with the main accused is a question, which can be determined by the trial Court during the trial. So far the plea of apprehension for absconcion of the applicants on the ground that co-accused are absconders, they will abscond away is concerned, the absconsion of co-accused does not prohibit present applicants for concession of bail. Moreover, the place of wardat, as stated, is a public place i.e Datson Stop but no independent witness has been cited despite fact that the parties are in admitted inimical terms. There is also delay of 11 hours in lodgment of FIR without plausible explanation. Further, alleged injuries to the witnesses are not punishable with capital punishment and do not come within the prohibitory clause of section 497(1), Cr.P.C. The applicants are behind the bars since 02.02.2018 and no fruitful purpose would be served to keep them in Jail for an uncertain period.

9. Under the circumstances, I am of the view that the applicants have been able to make out the case for further inquiry as contemplated subsection (2) of Section 497, Cr.P.C. Accordingly, applicants are admitted to bail subject to their furnishing solvent surety in the sum of Rs.3.00,000.00 [rupees three hundred thousand only] each and PR bond in the like amount to the satisfaction of trial Court. Criminal Bail Application stands disposed of. MQ/D-6/Sindh Bail granted.