2010 P Cr (PLP)

SYED SHAFQAT ALI SHAH MASOOMI, J.

This application is directed against the impugned order dated 25-3-2009, passed by learned 1st Additional Sessions Judge, Shikarpur in criminal bail application filed in Sessions case No. 185 of 2008, arisen out of F.I.R. No.180 of 2009, Police Station New 'Faujdari Shikarpur, for offences under section 302, 452, 109, 148, 149, P.P.C. for grant of bail to applicants after their bail plea was declined by the learned trial Court vide impugned order.

2. Facts of the case in nutshell are that on 11-8-2008, complainant Nazir Ahmed Manganhar lodged report with Police Station New Faujdari Shikarpur, alleging therein that he is married with Mst. Zulekhan and from her wedlock he has six daughters and two sons; his daughter, namely, Mst. Sartaj is married with Abdul Ghaffar Katto and said Abdul Ghaffar had quarrelled with his wife Mst. Zulekhan over some domestic affairs. In the morning of fateful day, when complainant, along with his wife, his mother-in-law Mst. Arbab and his daughter Mst. Sartaj were available in the house, as such at 7-00 a.m. accused Abdul Ghaffar, Abdul Jabbar, Mumtaz (applicants), Mashooque duly armed with T.T. pistols, Jagan, Aijaz having guns and two unidentified persons, who were also having guns in their hands; they in furtherance of their common intention to commit murder of. Mst. Zulekhan entered into house of complainant and in presence of complainant one of accused, namely, Abdul Ghaffar, fired straight shot in order to commit murder of Mst. Zulekhan, which hit her on head and gone through and through. She raised cries and fell down and died on the spot. Thereafter all the accused went outside of the house and escaped away.

3. Learned counsel for the applicants, contended that applicants were merely present in the house of the complainant along with co-accused, and no specific role of making firing upon deceased has been assigned to them. It is further stated that co-accused Jagan has been let off by the police. In challan the said accused Jagan has been shown as absconding in the interim challan, whereas after that in final challan he has been declared innocent. Not only the name of the said accused Jagan transpires in the F.I.R., but in 161, Cr.P.C. statements of prosecution witnesses also.

4. Learned State Counsel concedes to the grant of bail to the applicants.

5. Heard the learned counsel for the applicants, the learned State Counsel and perused the record which reveals that the name of applicants transpires in the F.I.R. The F.I.R. has been promptly registered. Offence took place on 11-8-2008 at 7-00 a.m. and the F.I.R. was registered on same day at 0900 hours within two hours. The F.I.R. also discloses that all the accused including applicants Mumtaz and Abdul Jabbar trespassed in the house of the complainant and also they were members of unlawful assembly and in furtherance of their common object appeared at the place of vardat, whereby one of the accused, namely, Abdul Ghaffar fired on Mst. Zulekhan the wife of the complainant and due to firearm injuries she died on the spot; therefore every member of the unlawful assembly is vicariously liable for the commission of crime. The contention of learned counsel for the applicant that no specific role has been assigned to applicants has no force as according to F.I.R. the present applicants along with other accused entered in the house of complainant duly armed with pistols. The above facts disclose that the present applicants along with main accused Abdul Ghaffar while entering in the house of complainant then facilitating the main accused Abdul Ghaffar to kill the deceased in presence of her husband and her six children. The F.I.R. has been registered with short period of two hours, all the prosecution witnesses, namely. Mst. Arbab and Mst. Sartaj have supported the version in respect of entering in the house of the complainant with principal accused Abdul Ghaffar and both the applicants were armed with T.T. pistols. Deceased Mst. Zulekhan was the mother of six daughters and two sons; most of her children are minors. She sustained firearm injury on the head in furtherance of the common intention of the present applicants/accused. The offence took place in the morning time i.e., at 7-00 a.m. and the accused were properly identified by the complainant and two eye-witnesses present at place of incident. In the existing circumstances, applicants have failed to make out a case of further enquiry; therefore, the, application is dismissed.

6. The observations made hereinabove are tentative in nature for the purpose of only disposal of bail application and may not influence the mind of trial Court which is free to appraise the evidence strictly according to merits of the case. H.B.T./M-132/K Bail refused.