2004 PLP 2182 (YLR)

Ghulam Rasool A. Baloch for Applicant. Muhammad Iqbal Memon, A:‑G. for the State. Date of hearing: 31st December, 2003. Dismissed as infructuous.

2. The facts of the case in brief are that on 13‑3‑2003 complainant Barkat Ali, his brother Mour and sister Mst. Bhagul had gone to offer Fatiha in the graveyard of Shadi Shaheed. While they were busy in cleaning graves at about 1100 hours accused Manthar (2) Bagan both armed with pistols (3) Inayatullah (applicant) and one unidentified person both of whom were empty‑handed came running and abusing the brother of the complainant Mour and said that they will not spare him and shall take revenge of earlier murder. It is alleged that accused/applicant Inayatullah thereafter grappled with Mour and Manther fired from his pistol upon the head of Mour who fell down on the ground while raising cries. Accused Bagan allegedly pointed his pistol towards the complainant and others while saying that nobody should come near to them whereafter the accused went away while making fires in the air and raising slogans. Incident was witnessed by Din Muhammad Shambani and others who were present there. Mour succumbed to the fire arm injury which was through and through on his head. The complainant thereafter went to lodge the report.

3. Bail application was filed on behalf of the present applicant before the learned trial Court/IIIrd Additional Sessions Judge, Khairpur mainly on the ground that at the time of incident the applicant was empty handed and the only allegation against him is that he had grappled with Mour and took him into his clutches whereafter accused Manthar fired on the head of Mour. However, the said application has been rejected by the learned trial Court on the ground that applicant Inayatullah facilitated co‑accused Manthar who fired at the deceased. The applicant has now filed this application before this Court.

4. In support of his plea for bail learned counsel for the applicant has mainly urged that the allegation of catching hold of the deceased or grappling with him, in such circumstances has always remained a point of further enquiry and the concession of bail is being extended not only by this Court but apex Court as well. Learned counsel has placed reliance on the case of Mahmood Akhtar and another v. Haji Nazir Ahmed and 4 others 1995 SCMR 310, where cancellation of bail of an accused was declined by the Honourable apex Court who was granted bail after taking into consideration the fact that the allegation against him was that of catching hold of deceased before he was given injuries by this co‑accused and as such it was a case of further enquiry. Learned counsel has also placed reliance on the case of Akbar Khan v. The State 1985 PCr.LJ 2695, where a Single Judge of this Court granted bail to an accused to whom no overt act was attributed and the only allegation against him was that of catching hold of the deceased. Learned counsel has further sought support from the case of Ghulam Jeelani v. The State 1987 PCr.LJ 1583 where an allegation against an accused was only that of raising Lalkara and holding the deceased in clasp when injury was caused by the co‑accused. 1t was found to be a case of further enquiry us to whether accused shared common intention to kill, with his co‑accused. Lastly the learned counsel has referred to a recent judgment in the case of Ali Shah v. The State 2002 PCr.LJ 707 where an accused who had allegedly caught hold of deceased by arms at the time of occurrence alongwith other co‑accused when the principal accused had given a danger blow on the chest of the deceased, was granted bail as participation in the commission of the offence required further enquiry. Mr. Baloch has further argued that admittedly there is background of enmity over some previous murders and as such chance of involving as many innocent persons as possible cannot be ruled out. Learned counsel has further argued that apart from the above line of argument the incident as narrated in the F.I.R. also' calls for further enquiry particularly when it is alleged that applicant/accused took Mour in his clasp and co‑accused Manthar fired on the head which went through and through, but no injury was found on the person of the applicant though he had allegedly taken deceased into his clasp.

5. Mr. Muhammad Iqbal Memon, learned State Counsel has opposed the grant of bail and argued that the grappling in fact facilitated the co‑accused to commit the murder of the deceased and as such the applicant is not entitled for bail.

6. I have given due consideration to the arguments of the learned counsel for the applicant and the learned State Counsel. I have also gone through the judgments/ orders cited at the bar and the material available on the record. In view of the facts and circumstances of the case I find sufficient force in the contentions of the learned counsel for the applicant that it is a case of further enquiry though the allegation of grappling or taking into clasp a person who us done to death a co‑accused, in all cases may not be a ground for grant of bail as each case. is to be seen in its own perspective and background. The meeting of the complainant side and accused in the graveyard at .the relevant date and time and the fact that there was only one shot on the head of the deceased though four persons, nominated in the F.I.R. have been assigned various parts in commission of the offence, go to show that there‑are grounds to hold that the case of A the applicant requires further enquiry as contemplated under section 497(2), Cr.P.C. Resultantly this application is granted. Applicant Inayatullah son of Punhal Khan Shambani shall be released on bail in case he furnishes one solvent surety in the sum of Rs.550,000 (Rupees five lac fifty thousand only) and P.R. Bond in the like amount to the satisfaction of the learned trial Court. H.B.T./I‑9/K Bail granted.