2023 PLP 65 (YLRN)

ABDUL HAMEED BALOCH, J.

Through this order I intend to dispose of above bail application filed by the applicants in case FIR No. 82 of 2020, registered under Sections 302, 454, 147, 148, 149 Pakistan Penal Code (P.P.C.) with Levies Thana Chaman District Killa Abdullah.

2. Precise facts of the case are that on 8th October, 2020, case FIR No. 82 of 2020, under above mentioned sections was registered with Levies Thana Chaman District Killa Abdullah, on the report of complainant Bibi Balqees on the allegation that the accused persons committed murder of her son namely Allauddin, while co-accused Abdul Waris beaten her with iron object on her feet, whereas co-accused Rozi Khan and Abdul Qayum wrapped scarf around the neck of her daughter in law namely Bibi Meena wife of Noor Ali, who was pregnant and dragged her in the street due to which she became unconscious and miscarriage took place. Further, the accused persons made firing on the gate of the house and also tried to burn the shop. The incident was witnessed by Bibi Hina daughter of Haji Adam.

3. After registration of FIR the applicants/accused were arrested and subjected to investigation and challan of the case was submitted before learned Additional Sessions Judge, Killa Abdullah at Chaman. After submission of challan the applicant/ accused Daro submitted bail application before learned trial court which was rejected, whereafter, the applicant/accused Daro approached this court, but vide order dated 16th November, 2020 the application was dismissed as not pressed, however, the applicant was let at liberty to move fresh bail application after recording statement of prosecution witnesses.

4. The applicants/accused after recording statement of complainant PW-1 Bibi Balqees moved application for grant of bail before the trial court, but same was rejected vide order dated 27th March, 2021. The applicant/accused along with co-accused filed bail application bearing No. 173 of 2021 before this court which too was rejected vide order dated 7th April, 2021. After recording statements of witnesses beside PW-1 the accused/ applicant again approached the trial court for grant of bail which was rejected vide order dated 30th October, 2021, hence the applicant is before this court for the same relief.

5. Heard and gone through the record with the assistance of learned counsel for the applicant and learned DPG. The record transpires that after rejection of second bail application of applicant vide order dated 7th April, 2021 the prosecution examined statements of three more witnesses. A perusal of evidentiary material produced before the court the role alleged to applicant that he was present at the time of occurrence and absconding accused Abdul Waris made firing at the person of Allauddin (deceased) causing his death. It is not discernible from the perusal of record that the applicant was with arm at the time of occurrence, but was present empty handed. Such type of allegation is very easy to level. In case of Qurban Ali v. The State 2017 SCMR 279, the Honorable Apex court held as under: "

The petitioner Qurban has not been attributed any overt act during the occurrence except the role of raising lalkara.

" The Honorable Supreme Court in case of Tariq Zia v. The State 2003 SCMR 958 held: "

The contents of the F.I.R. show that the accused was empty-handed and has not played any active/overt act in the commission of the offence.--"

6. It is settled principle that mere presence of an accused at the time of commission of crime is not enough to hold him responsible for commission of the crime unless the prosecution succeeds in establishing that the accused had also shared common intention or common object with co-accused. In case Ghulam Hyder v. The State 2021 SCMR 1802 the Hon'ble Court held: "

3. Be that as it may, though named in the crime report alongside others of the same brotherhood, the petitioner is assigned role of a facilitator by holding the deceased alongside four others; the question is as to whether in the facts and circumstances of the case as alleged by the complainant himself, such facilitation was at all required, that too, without incurring fatal risk of being unintendedly hit by the shot in the darkness and as such petitioner's culpability requires further probe within the contemplation of subsection (2) of section 497 of the Code of Criminal Procedure, 1898, paving way for his release on bail, particularly when his continuous detention is serving no useful purpose. The petition is converted into appeal and allowed; the appellant is admitted to bail on his furnishing bond in the sum of Rs.500, 000/- with one surety in the like amount to the satisfaction of the learned trial Court." Though the applicant/accused has been nominated in the FIR by the complainant with the role that he was present at the site of occurrence along with other nominated accused wherein the absconding accused fired on Allauddin due to which he succumbed to his injuries. In similar unreported case tilted Ikhlaq Ahmed v. The State, bearing Criminal Petition No. 1099 of 2021, the Hon'ble Supreme Court of Pakistan held: "

The allegation against the petitioner is of ineffective firing and according to prosecution's own case he did not cause any injury to the deceased or the witnesses. In that eventuality the vicarious liability of the petitioner with his co-accused will be determined by the trial court after recording the evidence. The argument of the learned counsel that during investigation a Kalashnikov was recovered on his pointation and three empties recovered from the spot were found to have been fired from the said Kalashnikov. The recoveries always considered as a corroborative piece of evidence and in this case according to learned Additional Prosecutor General, Balochistan the parcel of Kalashnikov and empties were sent together to the office of Forensic Science Laboratory and evidentiary value of the said recoveries will be determined by the trial court after recording the evidence but presently due to the fact that he did not cause any injury to anyone and being brother of main two co-accused, his case calls for further inquiry under subsection (2) of section 497 Cr.P.C.-"

7. In view of above discussion the instant bail application is allowed. The applicant/accused Daro Khan son of Haji Abdul Rehman is admitted to bail in case FIR No. 82 of 2020 Levies Thana Chaman District Killa Abdullah, under Sections 302, 454, 147, 149, 149, P.P.C., subject to furnishing surety bonds in the sum of Rs. 1,000,000/- (Rupees one million) and PR of the like amount to the satisfaction of Additional Registrar of this Court or the trial court. The observations made hereinabove are tentative in nature and same shall not influence the merits of the case. SA/195/Bal. Bail granted.