2010 P Cr (PLP)

KHADAM HUSSAIN M. SHAIKH, J.

The applicant has sought bail in Crime No.43 of 2008 of Police Station Garhi Yasin registered for an offence under sections 302, 148, 149, 337-H(2) 114, P.P.C. The hail plea advanced by the applicant before the trial Court was declined vide order dated 6-11-2008. Hence this application.

2. Briefly the facts of the prosecution case are that on 22-2-2008 at 1330 hours the complainants Ghulam Serwer son of Ghulam Serwer Marfani resident of own houses near Misri Wahan lodged F.I.R. being Crime No.43 of 2008 of Police Station Garhi Yasin mainly stating therein that their houses and the houses of Altaf Marfani and others are adjacent to each other. Prior to lodging of the F.I.R. Altaf came on the roof of his house and the complainant's son Ghulam Abbas restrained him, which resulted into altercation between them. On the fateful day i.e. 22-5-2008 the complainant, his sons Ghufam Abbas aged about 30 years and Ghulam Hyder and his relative Siraj son of Haji Ferozuddin had gone to their lands. At about 7.30 a.m they saw and identified the accused namely 1, Ayaz son of Gul Bahar,

2. Altaf son of Nazir Ahmed, 3, Deedar, 4, Dildar both son of Kouro, 5, Bashir son of Gul Bahar, 6, Gul Bahar son of Ayaz, Abdul Nabi son of Deedar, all by caste Marfani all armed with Kalashikovs, resident of own houses near Misri Wahan Taluka Garhi Yasin and three unknown persons, who were not previously known to them, armed with guns, came there. On the instigation of accused Dildar, accused Ayaz, Altaf and Deedar fired from their Klashnikovs straight at complainant's son Ghulam Abbas which hit him who fell down raising cries. On cries and gunshot reports many village people came running giving challenges. The accused seeing them ran away towards eastern side, firing in the air. The complainant and P.Ws. then found Ghulam Abbas being seriously injured having firearm injuries on different parts of his body. The complainant immediately shifted his injured son to Shikarpur Hospital where he was provided treatment and was subsequently referred to Larkana Hospital, where he died during treatment. Thereafter complainant took the dead body of his deceased son to Taluka Hospital Garhi Yasin where leaving the above P.Ws. to guard the dead body he appeared at Police Station Garhi Yasin and lodged the above F.I.R.

3. Learned counsel for the applicant has mainly contended that the name of the applicant is not mentioned in the F.I.R. though the was already known to the complainant that the name of the applicant was taken by the complainant in his further statement recorded on the following day i.e. 23-5-2008 after consultations and with deliberations, that the statements under section 161, Cr.P.0 of the prosecution witnesses were also recorded on 23-5-2008 without any explanation of such delay, that no overt act is attributed to the present applicant, who had not caused any injury either to the deceased Ghulam Abbas or even to the P.Ws., that there is general allegation of firing in the air against the accused including the applicant who was allegedly armed with gun, but neither any empty of .12 bore gun was secured from the place of incident nor recovery of the alleged gun has been made from him although he remained in custody under the remand for 7 days, and as such , his case requires further inquiry into his guilt. Learned Counsel for the applicant has relied upon the case laws

1. Muhammad v. The State (1998 SCMR 454),

2. Faraz Akram v. The State (1999 SCMR 1360) and an unreported case Cr.B.A.No.314 of 2004 decided by this Court on 17-6-2004.

4. Mr. Muhammad Akram Shaikh, learned counsel for the State, has frankly conceded to the argument advanced by the learned Advocate for the applicant and has raised no objection to the' grant of bail to the applicant.

5. I have carefully considered the arguments advanced by the learned counsel for the parties and have also gone through police papers with the assistance of learned State Counsel. I find the name of the applicant Abdul Fatah does not find place in the F.I.R. and he was named in the supplementary statement of the complainant and statements under section 161, Cr.P.C. of P.Ws., recorded on 23-2-2008. So far the allegation against the applicant is concerned, it is stated in the supplementary statement of the complainant and statement under section 161, Cr.P.C. of the P.Ws. that the applicant was armed with gun and while leaving the scene and running away, the accused had made firing in the air. No overt act was assigned to the applicant. No empty of .12 bore gun was secured from the place of incident and even no recovery of alleged gun has been effected from him. In the case of Muhammed (supra) the honorable Supreme Court of Pakistan granted bail to the accused, who had allegedly made ineffective firing and no injury was attributed to him during occurrence, and it was further, held, that case against the said accused needed further inquiry. Similarly, the apex Court in the case of Faraz Akram (supra) granted bail to the accused. The allegation against the said accused was that he had made ineffective firing and no empty was secured from the spot. It was further observed that question of vicarious liability of the applicant could be determined at the time of trial.

6. In view of what is discussed above, I am of the considered opinion that the case of the applicant falls within the ambit of section 497(2); Cr.P.C. which entitles him to the concession of bail, therefore, bail is granted to the applicant Abdul Fatah in the sum of Rs. 200,000 subject to furnishing solvent surety and P.R bond in the like amount to the satisfaction of the trial Court. The listed application M.A. 22 of 2009 is disposed of. H.B.T./A-139/K Bail granted.