2008 PLP 1206 (YLR)

ABDUR RAHMAN FARUQ PIRZADA, J.

By this application, the applicant has sought bail in the case vide Crime No.100/2006 of P.S Garhi Yasin for an offence under section 302, 148,149, 114 and 337-H(2), P.P.C. The F.I.R was lodged by complainant Muhammad Ameen at P. S Garhi Yasin on 11-12-2006 at 11-30 a.m. As briefly stated, the prosecution case is that there was bloody dispute going on between the complainant's trine and the tribes of Kambranis, Brohis, Jaferis and Elsanis, although the complainant's village people did not have any concern with the said dispute. On the date of incident, complainant along with his brother Muhammad Ibrahim, relative Mehar, Muhammad Ramzan and Muhammad Sharif, were coming on foot from their village for some work towards Garhi Yasin town via link Road Garhi Yasin-Jagan. When at about 10-00 a.m. they reached near Khathor Canal bridge, 38 persons including the applicant, being armed with K.Ks, rifles and guns who were concealing themselves in the canal, came out. Accused Mewal Kambrani instigated other accused to take upon the complainant and murder them as they were the enemies. On such instigation accused Rahim Bux, Baz Muhammad and others fired straight shots with their respective weapons upon the complainant party. The shots fired by accused Rahim Bux, Ajab Gul, Shahzado, Muhammad Khan and Bashir, hit complainant's brother Muhammad Ibrahim, whereas the shots fired by accused Himath, Shafi Muhammad Rahimo alias Rehmatullah and Shahnawaz hit complainant's relative Mehar, both of whom fell down in order while raising cries. The complainant party fell down to save their lives. Thereafter all the accused also fired with murderous intention upon complainant party and ran away towards village Qadir Bux while raising slogans. The complainant party found Ibrahim and Mehar to have sustained fire-arm injuries on their persons and they had expired. Subsequently, the F.I.R was lodged. Learned counsel for the applicant has submitted that the applicant has not been assigned the role of causing any injuries on the person of deceased. As per F.I.R only role of ineffective firing is "assigned to the applicant. He has submitted that as many as 38 persons have been named in the F.I.R as such the possibility of exaggeration in number of accused cannot be ruled out. He has further submitted that 5 accused persons namely Rahim Bux, Imamuddin, Sulleman, Sardaroo and Muhammad Khan were let off by the police during investigation, and their names were placed in column No.2 of the challan; out of them two accused namely Rahim Bux and Muhammad Khan were specifically assigned the role of causing injuries to deceased Muhammad Ibrahim; as such the prosecution case has been rendered as doubtful. Learned State Counsel has opposed the bail application on the ground that applicant is liable for having common intention to commit murder of deceased persons as he was allegedly armed with rifle and he fired upon the complainant party. I have carefully considered the arguments by learned counsel for the applicant and learned State Counsel. As per F.I.R due to tribal dispute, 38 accused persons allegedly attacked upon the complainant party, being armed with fire-arms. Admittedly the shots fired by the applicant did not hit the deceased persons and he has only been assigned the role of ineffective firing. Five accused persons allegedly fired upon Muhammad Ibrahim whereas other 4 co-accused persons are said to have fired upon deceased Mehar. In the F.I.R names of 38 persons are given and it may remain open to discussion as to whether it could be possible for the complainant party to properly identify each and every person from the large number of accused persons with their specific weapon, when allegedly the accused persons immediately started firing upon complainant party as soon as they came across them. In the background of tribal enmity as shown in the F.I.R the possibility of exaggerating the number of accused by complainant party may not be ruled out. It is also significant to note that 5 accused persons were found innocent by the police during investigation and their names were, placed in column No.2 of the challan. It is further important to note that two accused namely Rahim Bux and Muhammad Khan were actually assigned the role of firing upon and hitting deceased Muhammad Ibrahim, but still they were let off by the police; this factum may lend support to the case of applicant for the purpose of bail, since the case of applicant is on better footings than that of co-accused Rahim Bux and Muhammad Khan who were let off in the case. Again, in the given circumstances, it is hard to assert that the applicant actually harboured common intention of killing any person. The matter of vicarious liability would be properly determined at the stage of trial and at this stage the same question cannot be decided, as such the benefit may be given to applicant at this stage of bail application. It may also be pertinent to note that co-accused Mir alias Mir Muhammad has been granted bail by learned 2nd Additional Sessions Judge, Shikarpur vide order, dated 17-9-2007 although he was granted bail on the ground of affidavits sworn by two eye-witnesses out of three eye-witnesses; however, this factor would also have the effect of weakening the prosecution case, for the purpose of bail. Learned counsel for the applicant has placed reliance upon the cases of Muhammad Sadiq and others v. The State 1996 SCMR 1654, Muhammad v. The State 1998 SCMR 454, Muhammad Shahid v. The State 2006 PCr.LJ 1600, Ahmed v. The State 2007 PCr.LJ 987 and the case of Parial v. The State, 2006 PCr.LJ 1212 which may be relevant so far as the case of applicant is concerned. In the case of Muhammad Sadiq and others v. The State reported as 1996 SCMR' 1654, bail was granted in a murder case wherein accused were alleged to have kept on firing, and raising Lalkara at the time of occurrence and that although accused were armed with pistol and rifle yet they did not cause any injury. In the cases of Muhammad v. The State 1998 SCMR 454, Muhammad Shahid v. The State reported as 2006 PCr.LJ 1600, the D.B of Lahore High Court granted bail in a murder case, when accused had not caused injury to any person during alleged occurrence and only role against the accused in the F.I.R was of indulging in the effective firing. In the case of Ahmed v. The State reported as 2007 PCr.LJ 987 one of the grounds for grant of bail inter alia was that two accused who had allegedly fired at the deceased had been let off by the police despite the fact that they had been assigned specific role. The same ground was considered for grant of bail in the case of Parial v. The State reported as 2006 PCr.LJ 1212. In view of the foregoing discussion, I find the case of applicant fit for further inquiry as envisaged by provisions of section 497(2), Cr.P.C. Accordingly this application is allowed and the applicant may be released on his F furnishing solvent surety in the sum of Rs.1,00,000 and P.R bond in the like amount to the satisfaction of trial Court. It may be needless to say that the above observations are purely tentative in nature, and the learned trial Court shall not be influenced in any manner while finally deciding the case. N.H.Q./G-1/K Bail allowed.