2017 PLP 188 (YLRN)

MUHAMMAD SALEEM JESSAR, J.

Applicant/accused Rehman alias Peero Siyapad Brohi has sought his release on post arrest bail in Crime No.23/2015 registered with P.S. Jehan Wah, District Shikarpur, under sections 302, 324, 148, 149, P.P.C. The case has already been challaned by the police on 13.10.2015; same is pending for trial before Court of learned 2nd Additional Sessions Judge, Shikarpur, vide Sessions case No.347/2016, Re: State v. Abdul Rehman and others. The applicant had applied for his bail before trial Court but his request was turned down vide order dated 28.7.2016, hence this application.

2. The case of prosecution as reported in FIR No.23/2015 is that due to murderous enmity cousin of complainant namely, Jaffer Brohi had committed murder of his wife by the declaring her "Kari" with Yaroo Brohi at Balochistan, therefore, Muhammad Raheem and others were saying that they would make quarrel with Ali Gohar and therefore, they have migrated from Balochistan and have settled at village Noor Ahmed Jakhrani some 07/08 years ago. On 22.9.2015 the complainant together with his brother Ali Gohar aged about 41/42 years, his wife Mst. Balli wife of Ali Gohar aged about 30/32 years, nephew Ghulam Rasool Buledi and other family unit were sleeping in their house on separate cots. The electric bulbs were glowing in their house. On 23.9.2015 at 1230 hours of night, they awakened upon the barking of dogs, saw to accused Muhammad Raheem, Noor Hassan alias Noora and Abdul Rehman alias Peero all three sons of Abdul Hakeem Brohi, resident of Balochistan and two other unknown persons, who were not previously known to them and will be recognized, if shown again. All were having Kalashnikovs. By reaching there, have pointed their weapons, directed the complainant party to remain seated on their respective places and sleep. Within the sight of complainant party, accused Muhammad Raheem and Noor Hassan alias Noora have fired from their Kalashnikovs upon his brother Ali Gohar aims to commit his Qatl-e-Amd, which hit him, who fell down and started riddling. Accused Abdul Rehman alias Peero (present applicant) have made straight fire from his Kalashnikov upon Mst. Balli wife of Ali Gohar, which hit her and she fell down by raising cry. It is further alleged that accused have said that after killing Ali Gohar in revenge of Yaroo Brohi are going back. Later, all the accused along with their weapons have decamped towards eastern aside. The complainant party went and noticed that Ali Gohar sustained fire-arm injuries on his head, neck, right shoulder chest and back; the blood was oozing and was dead. Mst. Balli sustained fire-arm injuries on her arm legs and was injured. In order to provide first aid treatment to injured Mst. Balli, she was shifted with the help of relatives towards hospital, while dead body of Ali Gohar was shifted to Sultan Kot Hospital and its autopsy was got conducted through police. After its funeral ceremony at their village, the complainant returned to Police Station, complained that accused Muhammad Raheem, Noor Hassan alias Noora in revenge of Yaroo Brohi have caused murder of Ali Gohar by making straight fires upon him and accused Abdul Rehman Brohi by making straight fires from Kalashnikov upon Mst. Balli has got her injured. To such effect present FIR was lodged.

3. The police after registration of the case remained mum for a month and have arrested applicant on 23.10.2015 from District Jail Dera Murad Jamali Balochistan and after completion of legal formalities submitted the challan before the competent Court of law on 13.10.2015.

4. Mr. Ghulam Ali Rind, learned counsel for the applicant contended that the applicant is innocent and has not committed the offence as alleged. He further contended that role attributed to applicant is that he allegedly caused fir-arm injuries to PW Mst. Bali, which are on her non-vital parts and injuries whatever have been opined by the medico legal officer as not falling under the prohibitory clause of section 497(1), Cr.P.C. He further submitted that witnesses of the present case namely Ghulam Rasool and Doda Khan and absconders in Crime No.21/2009 under sections 302, 34, P.P.C. registered with P.S. Manjhoo Shori and deceased Ali Gohar was also absconding in Crime No.74/2010 under sections 302, 324, 148, 149, P.P.C. of P.S. Manjhoo Shori (Balochistan). He further submitted that injuries allegedly sustained by Mst. Balli have been declared by the medico legal officer as Jurh Ghayr Jaifah, which fall under section 337-F(iii), P.P.C. He further submitted that role of causing fir-arm shot injuries to deceased is assigned to co-accused, who are still at large and have not been arrested so far and as far as role of applicant is concerned, it is simply alleged that he has caused injuries to Mst. Balli without containing a word regarding specification for application of section 324, P.P.C. and thus the case against applicant is of further enquiry. He further contended that the applicant was facing trial in connection with Crime No.14/2015 of P.S. Manjhoo Shori in P.P.C. case No.22/2016, under sections 381-A, 457 and 34, P.P.C. before the Court of Judicial Magistrate/ MFC Tamboo (Balochistan) and after full dressed trial, he has been acquitted by the trial Court vide judgment dated 30.5.2016. He has placed on record photocopy of judgment passed in afore-said case. Learned counsel submitted that the applicant is no more required by the District Jail Dera Murad Jamali and he has been detained there only because of instant case. He further pointed out that if the applicant may not be released on bail, then the trial Court would not be able to commence the trial, as the applicant is not being produced before the trial Court regularly by the jail authorities from Balochistan.

5. Mr. Zahid Hussain Thaheem, learned Advocate for complainant along with complainant is present and vehemently opposed the bail application on the ground that the applicant is nominated in FIR with specific role of causing injuries to PW Mst. Balli, therefore, he does not deserve any leniency for his release on bail. He however, did no controvert the legal position with regard to the injuries, which are on non-vital part of the body and not falling under the prohibition clause of section 497(1), Cr.P.C.

6. Learned A.P.G. appearing for the State in view of above legal position and the material available on record has very candidly conceded the averments of defence counsel and has extended no objection for grant of bail to applicant.

7. I have heard learned counsel for either side, learned APG and gone through the material made available before me.

8. Admittedly, the parties are already on strange relations due to long standing enmity. Per averments of defence counsel that the witnesses including the deceased were proclaimed offenders in aforementioned cases/crime of Balochistan. The offence has allegedly taken place in odd hours of the night and the FIR is also delayed for about 38 hours, though the distance between Police Station and place of vardat was only 10/15 kilometers as the incident is said to have taken place on 23.9.2015 at 1230 hours, whereas report whereof has been lodged on 24.9.2015 at 1400 hours but no explanation appears to have been furnished by the prosecution for such an inordinate delay. The main role of causing injury to deceased Ali Gohar is assigned to co-accused Muhammad Raheem and Noor Hassan alias Noora, whereas applicant is alleged to have fired upon PW Mst. Balli on her non-vital parts of the body. Per final medico legal certificate of injured/P.W. Mst. Balli, the injury allegedly sustained by her showing no fracture at all and the injuries as per opinion of medico legal officer have been opined as Jurh Ghayr Jaifah Mutlamihah, which is defined under section 337-F(iii), P.P.C. and is punishable upto three years only as Tazir, hence does not exceed the limits of prohibition clause of section 497(1), Cr.P.C. and as far as his vicarious liability is concerned, it will be determined at the time of trial after recording evidence. In this respect, I am fortified with the dictum laid down by Hon'ble Supreme Court of Pakistan in case of Wajid Ali v. The State and another reported in 2017 SCMR 116, whereby Hon'ble Supreme Court of Pakistan in para 5 of the judgment has held as under: "The conclusion that there was common intention can only be reached after the evidence in the matter comes on the record. So far as the role of causing injury on the person of the complainant is concerned, it is admitted position that the said injury was reported to be ghair jaifa. The petitioner in this view of the matter cannot be kept behind the bars for an indefinite period. In the circumstances, the petitioner has made out a case for post-arrest bail. This petition is therefore converted into appeal and is allowed and the impugned order is set aside. Petitioner is admitted to post-arrest bail subject to his furnishing bail bonds in the sum of Rs.300,000 with two sureties in the like amount to the satisfaction of Trial Court."

9. In the above circumstances and in view of case of Wajid Ali (supra) and no objection extended by learned A.P.G. case of applicant has become of further enquiry. The applicant has been able to make out case for the release on bail. Consequently this bail application was allowed by short order dated 20.02.2017 and these are the reasons for same. The short order dated 20.12.2017 was in the following terms:

"Heard arguments. Reasons to follow application is allowed. Applicant shall be released on bail subject to furnishing his solvent surety in the sum of Rs.300,000/- (Three lac) with P.R. bond in the like amount to the satisfaction of trial Court." JK/A-27/Sindh Bail granted.