2002 PLP 833 (MLD)

1995 SCMR 310; 1996 SCMR 1125; 1987 SCMR 1906; 1982 SCMR 955; 2002 MLD 52; 1988 SCMR 281; 1979 SCMR 65; 1998 SCMR 354; 1998 SCMR 496 and Muhammad v. The State 1998 SCMR 454 ref. Faiz Muhammad Qureshi for Applicant. Mukhtar Ahmed Khanzada for A.‑G. for the State. Khadim Hussain Solangi for the Complainant. Applicant Ghulam Hussain alias Ghullan is seeking bail in Crime No. 18 of 2001 of Police Station, Sehwan for which he has been sent up to face his trial before the learned Sessions Judge Dadu. The prosecution story in brief is that on 31‑3‑2001, complainant Rasheed Ahmed, his brother Muhammad Rafique and Abdul Majeed as well as his uncle Jan Muhammad were going to Sehwan Town. When they reached near the Post Office three persons namely Ghulam Haider armed with pistol, Ghulam Hussain alias Ghullan (applicant) armed with double barrel gun and Ghulam Qadir armed with hatchet came there. No sooner they reached there Ghulam Haider fired his pistol directly at Muhammad Rafique who fell down after receiving the fire arm injury. Complainant and other raised cries whereafter all the three above named accused ran away while giving abuses and making fires. Rafique was found profusely bleeding. Police also reached in the meantime and the injured was taken to Hospital in a rickshaw where he succumbed to injuries. The complainant thereafter reached at the police station and lodged his report. The motive as shown in the F.I.R. to old matrimonial dispute over the hand of Mst. Afroze who is sister of the complainant and wife of accused Ghulam Haider Mallah who had at a previous occasion also caused injuries to Muhammad Rafique brother of the complainant and Muhammad Jurial father of the complainant. Application for bail has been rejected by the learned Sessions Judge, Dadu. In support of his plea for bail Mr. Faiz Muhammad Qureshi learned counsel for the applicant has argued that no overt act has been attributed to the present applicant though he is alleged to be armed with double barrel gun and the complainant side were at his mercy. Learned counsel has further argued that co‑accused Ghulam Qadir who was shown to be armed with hatchet has been released by the police by showing his name in column No.2 of the charge‑sheet on the plea of alibi, as such, the veracity and sanctity of the F.I.R. has come under clouds and calls for further inquiry. The learned counsel has further argued that admittedly there is enmity between the parties and enmity cut both ways. If may be a motive and may also be a cause for false implication. The learned counsel has further argued that involvement and complicity of the present applicant in the commission of offence and being vicariously liable requires further inquiry in view of the above stated facts and circumstances of the case. In support of his contention the learned counsel has placed reliance on a number of authorities including 1995 SCMR 310, 1996 SCMR 1125, 1987 SCMR 1906, 1982 SCMR 955 and 2002 MLD

52. Mr. Khadim Hussain Solangi learned counsel for the complainant has argued that this is a case in which present applicant also shared common intention with the main accused Ghularn Haider who is still absconding. He has further argued that presence of the applicant at the place of incident duly armed with a fire‑arm is sufficient to show his common intention. The learned counsel has further stated that there is enmity which is the cause for this murder and absconding accused is still issuing threats of dire consequences. In support of his case he has relied upon 1988 SCMR 281, 1979 SCMR 65 1998 SCMR 354 and 1998 SCMR

496. He has, therefore, urged that no case for grant of bail has been made out. Mr. Mukhtar Ahmed Khanzada, the learned State counsel has also opposed the grant of bail and while adopting the arguments of Mr. Solangi has stated that the applicant does not deserve to be released on bail. I have given due consideration to the contentions of the learned counsel for the parties and the case‑law relied upon by them. Firstly, I would like to observe that each criminal case has its own merits. Deeper appreciation of evidence is not permissible at the bail stage. While considering the plea of bail the Court has to evaluate the evidence available on the record tentatively keeping in view the various precedents of the superior Courts and this Court as well. Admittedly three accused were named in the F.I.R. and the police has disbelieved the complainant so for involvement of accused Ghulam Qadir is concerned and his name has been placed in Column No.2 of the challan. The prosecution case is, that the present applicant was armed with double barrel gun but it has not been used by him for causing any injury to the deceased or the P.Ws. The law cited by both the learned counsel shows that there is a consensus of the apex. Court as well as this Court that mere presence of a person at the time of incident in the absence of an overt act though being armed is not sufficient to hold him vicariously liable, and leaves room for further inquiry. In the case of Muhammad v. The State 1998 SCMR 454 bail was granted by the Hon'ble Supreme Court to an accused who despite being armed with gun, had not caused any injury to deceased or the witnesses and after the incident had fired in the air. I am, therefore, of the view that the case of the present applicant stands covered under section 497(2), Cr.P.C., as such, bail is granted to him in the sum of Rs.2,50,000 (Rupees two lacs fifty thousand) and P.R. Bond in the like amount to the satisfaction of the trial Court. H.B.T./G‑89/K Bail granted.