1999 PLP 3227 (MLD)

S. 497

Penal Code (XLV, of 1860), S. 302/148/149/411

Bail, grant of-- Tentative observation with regard to factual aspects of case at bail stage

Scope and appropriateness

Observation with regard to factual aspects though should be avoided while deciding bail application and matter should normally await evidence to come on record, but as far as involvement of accused was concerned, tentative observation to the effect that even motive against accused was quite remote, could not be resisted. Abdul Hakeem Brohi for Applicant Rashid All Shaikh for the State. By this application, the applicant Khuda Bux seeks release on bail in Crime No. 103 of 1996, Police Station Ratodero in offence under sections 302, 148, 149 and 411, P.P.C.

2. The prosecution case, briefly stated, is that on 13-6-1996 at about 8.00 a.m. complainant Fateh Ali alongwith his son Gaji Khan (deceased) came out of their house for proceedings to their lands, when they noticed accused Taj Muhammad having Lathi, Bahauddin, Naematullah and Bachal having guns and the applicant Khuda Bux having hatchet. Accused Taj Muhammad is stated to have challenged Gaji Khan (deceased) as to why he had been forbidding the accused from allowing one Ghanwar Jamali from visiting their house and therefore, he would not be spared. Upon such instigation by the accused Taj Muhammad, the three accused having guns are alleged to have opened fire killing Gaji Khan. The cries raised by Gaji Khan (deceased) and the complainant attracted his brother Samandar and nephew Habdar and other villagers. It is further alleged in the complainant that such person also saw the accused firing with guns. The accused upon seeing the people who had been attracted to the place of occurrence on account of cries and the fire reports, went away towards their houses. The complainant's son Gajji Khan died on the spot and F. I. R. was lodged without any delay at 9.00 a.m. As motive for the offence, it is alleged in the complaint that about an year prior to the date of incident one Haji Bozdar (cousin of the complainant) had levelled allegation against one Ghanwar Jamali about having illicit relations with his son's wife. The said Ghanwar Jamali is stated to be nephew of accused Bachal Bozdar. It is further alleged that Gaji Khan (deceased) used to ask the abovenamed Bachal and others not to allow Ghanwar Jamali to visit their house. The applicant was arrested on 2-7-1996 and the police papers show recovery of hatchet from him. Application for bail moved by the applicant was rejected by the Trial Court on 5-5-1997 whereafter the present application was filed.

3. I have heard both the learned counsels and with their assistance have gone through the record and police paper. On behalf of the applicant it is urged that the applicant, though named in the F. I. R. is not ascribed any role muchless specific part in commission of the offence. The learned counsel submits that assuming, for the sake of arguments, the presence of the applicant at the time and place of incident, still he had no role to play in the firing which resulted in death of the deceased Gaji Khan. The medical report, according to the learned counsel for the applicant, supports such position and 8 fire-arm injuries were found on the body of the deceased as per the post-mortem notes. The learned counsel for the applicant has further urged that the applicant's case can fall under sections 144 and 148, P.P.C. and, therefore, the applicant may be enlarged on bail.

4. Mr. Rashid Ali Shaikh, appearing on behalf of the State, contends that the incident is of broad daylight and F. I. R. was promptly recorded. The applicant was seen at the place of occurrence by the complainant who is an eye witnesses and there are reasonable grounds for believing that the applicant was part of the unlawful assembly which had gathered with the common object of committing murder and, therefore, the applicant is liable for offence punishable with death by virtue of section 149, P.P.C.

5. The allegations against the applicant are of presence at the place of occurrence and of being part of the unlawful assembly. The prosecution has not ascribed any active role or participation in the offence of murder as regards the applicant. The learned counsel for the State has stated on the basis of the Police papers that two accused Taj Muhammad and Bahauddin are still absconding whereas apart from the applicant accused Naematullah and Bachal have been arrested. The two co-accused, who are under arrest are stated to have used their fire-arms causing death of Gaji Khan. Although observations with regard to factual aspects should be avoided while deciding bail application and the matter should normally await the evidence to come on record, as far as involvement or the applicant is concerned, I cannot resist a tentative observation to the effect that even the motive as against him is quite remote. The person against whom allegation of illicit -elations was made namely Ghanwar Jamali does not figure any where in the occurrence. There is nothing in the complaint that the applicant was ever forbidden from allowing the above named Ghanwar Jamali to visit the applicant's house. Statements of the two witnesses under section 164, Cr.P.C. namely Hubdar and Samandar do not show that the applicant was seen by either of them at the place of occurrence.

6. In the circumstances, the applicant's case in my view, is of further C inquiry. The applicant, therefore, cannot be denied bail and exposed to punishment pending trial and production of evidence showing his participation in the unlawful assembly formed for the purpose of causing murder of Gaji Khan. The applicant is, therefore, admitted to bail subject to his furnishing two sureties in the sum of Rs. 2,00,000 each with P.R. Bond in the like amount to the satisfaction of Trial Court. H.B.T./K-35/K Bail granted.