2019 P Cr (PLP)

ZAFAR AHMED RAJPUT, J.

Having rejected his earlier post-arrest bail application bearing No. 96 of 2018 by the learned Additional Sessions Judge, Kotri-1, vide order dated 12.03.2018, applicant/accused Atta Muhammad son of Umar Khan Rind, through instant bail application, seeks bail in Crime No. 112 of 2016, registered at Police Station Sehwan, District Jamshoro, under sections 302, 324, 353, 148, 149, P.P.C, 6/7, ATA.

2. Briefly stated the facts of the case, as narrated in the aforesaid FIR lodged on 09.08.2016 by P.C. Mukhtiar Ali of Police Station Sehwan on behalf of the State, are that on 08.08.2016, he along with ASI Niaz Hussain Panhwar, duly armed with weapons, departed from the police station on motorcycle for patrolling. At about 2:00 a.m. when they reached close to the Ali Rest House, they saw a white coloured Prado vehicle coming towards them. Finding the vehicle suspicious, they got it stopped on that five persons alighted from it, out of them they identified two as Ghulam Hussain and Atta Muhammad, both were armed with pistols, while their three accomplices, who were armed with Kalashnikovs, remained unidentified. Accused Ghulam Hussain Rind made straight fire on ASI Niaz Hussain Panhwar and caused injuries at his chest, stomach and arms, while-all other accused persons pushed him (complainant) down and fired on him as well but he miraculously saved from their bullets. The accused then left the scene; ASI Niaz Hussain, subsequently succumbed to his injuries.

3. Heard the learned counsel for the parties and perused the material, available on record with their assistance.

4. Learned counsel for the accused has contended that the accused is innocent and has falsely been implicated in the case; that though the accused has been nominated in the FIR by name; but neither any specific role has been assigned to him nor even the crime weapon has been recovered from him; that there is no evidence against the applicant to implicate him in the commission of murder of deceased police officer, who himself in his dying declaration did not implicate the accused; that co-accused Zulfiqar alias Daboo has already been admitted to bail by this Court the case of the applicant is at better footings to said co-accused; that the bail cannot be refused on the basis of vicarious liability, unless it is shown through positive evidence that the accused indeed had played a role in the crime in question; that the case of accused falls within the ambit of further inquiry. In support of his contentions, learned counsel has placed his reliance on the case of Manzoor Hussain and another v. The State (2011 SCMR 902).

5. On the other hands, learned counsel appearing on behalf of legal heirs of the deceased while opposing grant of bail to accused has maintained that the accused is nominated in the FIR by name, which was recorded soon after the incident; that the applicant is involved in murder of a police officer; that mere possibility of further inquiry, which exists almost in every criminal case, is no ground for treating the matter as one under subsection (2) of section 497, Cr.P.C. that for the purpose of bail only tentative assessment of evidence is permissible and detailed evaluation of evidence at bail stage is always deprecated by the superior Courts. In support of his contentions, learned counsel has relied upon the case of Muhammad Abbasi v. The State (2011 SCMR 1606), Sardar Munir Ahmed Dogar v. The State (PLD 2004 SC 822), Haji Gulu Khan v. Gul Daraz Khan and another (1995 SCMR 1765), Mst. Reshma Jan v. Abdur Rehman (1991 SCMR 1849), Najeeb Gul v. Khaid Khan and another (1989 SCMR 899), Asmatullah Khan v. Bazi Khan and another (PLD 1988 SC 621), Akhter Hussain v. The State (2000 PCr.LJ 315) and Bashir Ahmed and another v. The State (2007 PCr.LJ 966).

6. Learned A.P.G. has adopted the arguments of learned counsel for the legal heirs of the deceased.

7. It would be seen that the accused, who is behind the bars since 10.08.2016, though has been nominated in the FIR by name but neither any specific role, has been assigned nor any avert act has been attributed to him except that he was also having a pistol and alighted from the vehicle along with co-accused Ghulam Hussain Rind, who made straight fire on the deceased ASI causing his murder. It appears that soon after the alleged incident, the deceased ASI was taken to Taluka Hospital Sehwan where in presence of Dr. Ghulam Rasool Daudpoto, Deputy Medical Superintendent and Dr. Sahib Khan, the Chief Medical Officer, the SHO Police Station Sehwan recorded dying declaration of deceased ASI, wherein he has categorically stated that co-accused Ghulam Hussain had fired on him directly. He has even not taken the name of present accused specifically in his dying declaration. Hence, the question of vicarious liability of the accused with regard to the commonness of his intention for committing alleged offence will be determined at the trial. As such, in the circumstances of the case mentioned above, I have found the case against the accused in my tentative assessment of the material placed on record as one of further inquiry into his guilt, as envisaged under subsection (2) of section 497, Cr.P.C. It also appears that co-accused Zulfiqar alias Daboo, who was identified by the witnesses in identification parade and from whose possession Kalashnikov is alleged to have been recovered, has been admitted on bail by this Court; vide order dated 06.02.2018 recorded in Cr. Bail Application No. S-371 of 2017 and the case of present accused is at par with the said accused. Therefore, principle of consistency also applies vigorously in the case of present accused, which demands equal treatment to the accused. The case-law cited by the learned counsel for the legal heirs of the deceased being on distinguished facts do not attract to the case of present accused. Accordingly, the accused is admitted to bail subject to his furnishing solvent surety in the sum of Rs.3,00,000/- (Rupees Three Hundred Thousand only) and P.R. Bond in the like amount to the satisfaction of the Additional Registrar of this Court.

8. Needless to mention here that the observations made hereinabove are tentative in nature and would not influence the trial Court while deciding the case of the accused on merits. In case accused in any manner tries to misuse the concession of bail, it would be open for the trial Court to cancel his bail after issuing him the requisite notice.

9. Above are the reasons of my short Order dated 11.06.2018, whereby instant criminal bail application was allowed. MQ/A-112/Sindh Bail granted.