2016 PLP 2629 (YLR)

ANWAR HUSSAIN, J.

Through this Application, Applicant Inayat alias Inayatullah Chacher, has assailed the Order dated 28.4.2015, passed by learned Additional Sessions Judge-I, Shikarpur, whereby his prayer for Post-arrest Bail has been declined in Crime No.58/2014, registered with P.S. Rustam, District Shikarpur, for offence punishable under Section 302, P.P.C. The case of prosecution as per FIR, lodged by Complainant Allahwassayo is that, Banhoon Chacher and others had leveled allegation of murder against Complainant Party, which was not proved, but Banhoon Chacher and others developed annoyance against the Complainant Party and challenged that they will cause harm to the Complainant Party. On 03.7.2014, the Complainant along with his father viz. Muhammad Mithal, aged 75 years, son viz. Saddam Hussain and cousin viz. Abdul Waheed, went to Soomrani Sharif and on their way back towards Shikarpur, when at about 4.00 p.m., they reached at Masha-Allah Computerized Weighing Scale/Kanta on Rustam-Chakk Road, they saw and identified accused Muhammad Yousif son of Banhoon, Ehsan, Inayat (present Applicant) and Shahzado all by caste Chacher, who all were duly armed with T.T pistols, on two motorcycles, which were driven by two unknown persons. On reaching near to Complainant Party the Muhammad Yousif/accused instigated rest of accused persons not to spare Complainant Party and commit their murder, as such accused Muhammad Yousif, Ehsan, Inayat and Shahzado, with intention to kill, made direct fires from their T.T. Pistols at Complainant's father, which hit him on right elbow, right leg knee, right side neck, left side chest below nipple and right side chest; he fell down on the ground. The Complainant Party entreated the accused persons in the name of Almighty Allah and the Holy Prophet (Peace Be Upon Him); then all of them by boarding on their motorcycles went away, made aerial firing in order to create harassment. The father of the Complainant died on the spot and the FIR was lodged. Learned Counsel for Applicant mainly contended that the Applicant is innocent, has been falsely implicated in this case by the Complainant due to previous enmity, which has been admitted in the FIR; that there are general allegations of making fires upon deceased against four accused including Applicant, but no specific injury has been assigned to any of them, therefore, in the circumstances it would be determined at the time of trial that who caused the fatal shot to the deceased; that during course of investigation the Applicant was found innocent and he was released by the Police by placing his name in Column No.II of the Challan, but subsequently concerned Magistrate did not agree with the opinion of Police and taken cognizance against the Applicant; that statements of prosecution witnesses were recorded after delay of 10 days, which is fatal to the case of prosecution. Per learned Counsel under these circumstances, the Applicant is entitled for concession of bail. Learned counsel in support of his contentions has relied upon 1980 SCMR 784, 2014 PCr.LJ 740 (AJK), 1974 PCr.LJ 450 (Lahore), 1987 MLD 1668 (Lahore). On the other hand, learned D.D.P.P. assisted by Counsel for the Complainant has opposed grant of bail to Applicant on the ground that the Applicant is nominated in promptly lodged FIR with specific role of making direct fire upon Complainant's father in furtherance of common intention with co-accused, caused five (5) firearm injuries on vital part, which resulted into his death, as such he is vicariously liable and his sharing common intention with co- accused is very much established from the role played by him in the commission of the offence. Not only this, but the empties recovered from place of incident prove the presence of the Applicant at the time of incident and medical evidence also supports the version of Complainant. Learned Advocate for Complainant relied upon 2003 PCr.LJ 135 (Karachi), 1979 SCMR 65 and 2002 PCr.LJ 1277 (Karachi). Heard the learned Counsel and gone through the material available on record. Perusal of record shows that FIR of the incident was promptly lodged in which the Applicant was nominated with specific role of making direct fire upon deceased along with co-accused thereby caused five firearm injuries on vital part of deceased, which resulted into his death, as such prima-facie the Applicant appears to be vicariously liable and his sharing common intention with co-accused is very much established from the role played by him in the commission of the offence and in support of the same reference is made to 1995 SCMR 1118 and 2010 MLD 1809 (Lahore). Moreover, the recovery of empties from place of incident also prove the presence of the Applicant at the time of incident and the Medical Report is also support the case of prosecution for which reference is made to 2000 PCr.LJ 31 (Lahore) and 2005 YLR 1676 (Lahore). So far as contention of learned Counsel for the Applicant that during course of investigation the Applicant was let off by the Police by placing his name in Column No.II is concerned, suffice it to say that opinion of the Police is not binding upon the Court at bail stage and it would be looked into at the time of trial by the Trial Court and even otherwise Challan has already been submitted/admitted. Reference is made to 2010 SCMR 1861 and 2003 PCr.LJ 135 (Karachi). Therefore, presently there appear reasonable grounds to believe that the Applicant is guilty of the alleged offence, which is punishable with death or imprisonment for life and is not entitled to concession of bail and none can claim bail as of right in non-bailable offences even though the same do not fall under prohibitory clause of Section 497, Cr.P.C. Reliance is placed on the case of Muhammad Siddique v. Imtiaz Begum (PLJ 2001 SC 1361). Accordingly, the Bail Application in hand stands dismissed. However, the learned Trial Court is directed to expedite the case and dispose of the same preferably within a period of four (4) months. Needless to mention here that the observations made hereinabove are tentative in nature and would not influence case of either party at trial. SL/I-14/Sindh Bail declined.