2017 PLP 133 (YLRN)

AFTAB AHMED GORAR, J.

Applicant/accused Liaquat Ali Buriro seeks post arrest bail in Crime No.143/2015 registered at Police Station Saddar Kamber under sections 302, 114, 337-H(2), 148, 149, P.P.C. His bail application was rejected by the learned Sessions Judge, Kamber-Shahdadkot at Kamber vide order dated 28.6.2015.

2. According to the case of prosecution, on 27.6.2015 complainant Bashir Ahmed Buledi, his brother Shahban and nephews Haji Faiz Mohammad and Asif Buledi, while returning on two motorcycles from Wagan Town after purchasing household articles, were waylaid at about 6.00 p.m. near Sim Nala on Ghatehar road, by accused Mohammad Uris, Rabail, Liaquat, Faizal, Shabir Ahmed and one unidentified person, all armed with repeaters and guns. It is alleged that on the instigation of accused Shabir Ahmed, accused Liaquat Ali, Faizal and unidentified person pointed their weapons towards the complainant party, while accused Mohammad Uris and Rabail fired upon Shahban, the brother of complainant, who expired while being taken to Larkana for treatment. Complainant then went to police station on 28.6.2015 and lodged FIR. 3 Mr. Aijaz Ali Kalhoro, learned counsel for the applicant contends that the role of firing at and committing murder of deceased Shahban is assigned to co-accused Mohammad Uris and Rabail. He also contends that though the present applicant is shown to be armed with repeater, yet no overt act is attributed to him. He further contends that the applicant, co-accused Faizal and unidentified person are alleged to have pointed their weapons towards the complainant party and made ineffective aerial firing. Learned counsel next contends that question of sharing common intention has to be determined at trial and case against the applicant requires further inquiry therefore, he is entitled to concession of bail. In support of his contentions, learned Counsel relied upon the case of Yaroo v. The State (2004 SCMR 864) and Ahsan v. State (2012 M L D 723).

4. On the other hand, Mr. Khadim Hussain Khooharo, learned DPG, appearing on behalf of the State, opposes the bail application and contends that the applicant is nominated in the FIR and he has facilitated the main accused, therefore, having shared common intention in the commission of alleged offence he is not entitled to concession of bail.

5. The complainant though was present on 14.11.2016 and the matter was adjourned at his request with final chance to engage his Counsel, but in spite of that neither he engaged Counsel nor has turn up to pursue the matter.

6. I have heard the learned Counsel for the parties and carefully perused the material available on record and have also gone through the case law cited at the bar.

7. It is admitted fact that no overt act is assigned to the present applicant; the role assigned to him is that he and co-accused apart from making aerial ineffective firing, pointed their weapons towards the complainant party. The applicant is not alleged to have fired either upon the deceased or any other member of the complainant party. Mere allegation of pointing weapons towards the complainant party is not sufficient to hold that the applicant has shared the common intention, unless his presence at the spot is substantiated through evidence. The role assigned to the applicant in the commission of alleged offence itself makes the case against the applicant to be of further enquiry. Accordingly, the bail application is allowed. The applicant is directed to be released on bail subject to furnishing solvent surety in the sum of Rs.300,000/- (Rupees Three Lac only) and P.R bond in the like amount to the satisfaction of the trial Court. WA/L-1/Sindh Application allowed.