2018 PLP 135 (YLRN)

AFTAB AHMED GORAR, J.

Applicant Abdul Jabbar Thahim seeks post arrest bail in Crime No.05/2012, under sections 302, 148 and 149, P.P.C. registered at Police Station Taluka.

2. Precisely facts of the prosecution case according to FIR lodged by complainant Haji Kabir are that on the day of incident at about 01.15 AM on the barking of dogs and noise complainant's son Muhammad Usman and nephew Muhammad Ismail woke up who went towards main door which was open where they saw and identified on bulb lights that accused Muhammad Waris and Muhammad Alam duly armed with Rifles and Abdul Jabbar along with two unidentified persons duly armed with guns were standing. Thereafter accused Muhammad Waris while giving hakal made straight fire upon Muhammad Usman which hit him and he fallen down thereafter all the accused made aerial firing and fled away from the scene of offence, subsequently, the injured died.

3. Learned counsel for the applicant contended that applicant is innocent and he has been falsely implicated due to enmity; that the case against the applicant is false and fabricated, that Mst. Zareena the sister in law of complainant Haji Kabir, the brother of Haji Kabir namely Fateh Muhammad died due to natural death and complainant Haji Kabir wanted to marry with alleged Mst. Zareena and approached to applicant for the hand of Mst. Zareena but applicant refused and solemnized the marriage of his sister with Muhammad Waris and due to such refusal the complainant was annoyed and implicated the applicant in false and fabricated case; that according to FIR complainant stated that his brother Fateh Muhammad was residing at Larkana and complainant himself resided separately as such version mentioned in FIR is not believable; that there is no role of applicant except making aerial firing; that accused is by caste Thaheem whereas both co-accused are Rind which creates doubt in the accompanying with other accused for committing murder as such possibility of lesser punishment to the applicant cannot be ruled out; he further submits that during investigation applicant was found innocent as such Investigating Officer disposed off case under 'A' class due to lack of evidence, therefore, his arrest by the police is illegal and he is required to be released on bail under subsection (2) of section 497, Cr.P.C.

4. Learned Addl.P.G, assisted by learned counsel for the complainant submits that applicant is nominated in the FIR; that no previous enmity has been shown by the applicant for his false involvement in this case; that the present applicant has been absconding since commission of the offence which disentitle him to the concession of bail.

5. Heard learned counsel for the parties and have perused the record with their assistance.

6. Perusal of the record shows that applicant is named in FIR but without any overt act particularly qua the deceased. Mere presence at the spot as narrated in the FIR is in the way that he along with co-accused made aerial firing. Needless to mention that in this way his vicarious liability perhaps has been shown in the matter by the prosecution however there cannot be any cavil to proposition that such liability is to be determined at trial. Hence, his case is amply covered within the mischief of subsection (2) of the section 497, Cr.P.C. calling for further inquiry into his guilt. Applicant is behind the bars since his arrest. It may be mentioned here that the case of an accused, when may become fit for bail on the ground of further inquiry, he then is entitled to such relief as of right and in such a situation he cannot be detained unnecessarily for a moment even. Even otherwise it is to be assumed that applicant was absconder, but mere abscondence of accused will not deter the court from extending concession of bail, if the applicant found entitled to the said concession. In this regard I am also fortified with the case of Mitho Pitafi v. The State (2009 SCMR 299).

7. Accordingly, this bail plea is accepted. Applicant Abdul Jabbar Thaheem shall be released on bail on his furnishing solvent surety in the sum of Rs. 300,000/- (Three Lac) and P.R. bond in the like amount to the satisfaction of the trial court. WA/A-78/Sindh Bail grante