1996 P Cr (PLP)

Ghulam Mustafa Memon for Applicants. Shahadal Awan for the Complainant. Amjad Ali Shah, A.A.-G. for the State. Petitioners James Sardar and Erick Sardar both sons of Sardar Masih were granted pre-arrest bail alongwith their brother Banjamen Sardar by the learned District and Sessions Judge, Karachi (Central) in a case arising out of F.I.R. No.209/94 registered at Police Station Gulbahar under section 302, Qisas and Diyat ordinance read with section 34, P.P.C. However, on 4-7-1994, the learned Sessions Judge confirmed the interim bail of Banjamen while interim bail granted to the petitioners was recalled. Hence both of them approached this Court by filing this present bail application. After hearing the learned Advocate for the petitioners on 15-8-1994 I had granted concession of interim pre-arrest bail to the petitioners on furnishing solvent sureties in the sum of Rs.1,50,000 (Rupees one lac fifty thousand only) each and P.R. bond in the like amount to the satisfaction of trial Court, and the same was confirmed on 5-9-1994 after hearing the learned counsel for complainant and the State. Reasons for granting bail are given hereunder.

2. As per prosecution story narrated by one Muhammad Naeem, who had lodged the F.I.R., that deceased Raees Ahmed was talking with him after meeting his friend Ansar Baig on 12-6-1994 at about 12-00 hours when all of a sudden' Jauseph Masih alias Lala armed with T.T. pistol, alongwith his two brothers (means the petitioners) arrived there. Jauseph was asked by his brothers to kill Raees Ahmed as he was, allegedly, murderer of their brother Yousif Masih. Jauseph fired 7/8 bullets continuously upon Raees Ahmed who was injured and fell down. Names of several persons, who witnessed the incident, were mentioned in the F.I.R. Raees Ahmed was taken to the hospital but he died on the way to the hospital. Motive behind this murder, as radiated by the record, is that deceased Raees Ahmed had murdered Yousif Masih who was brother of the petitioners An F.I.R. No.414/91 was registered against Raees Ahmed and another accused one of the applicants namely James Sardar is a witness in that case as per charge-sheet No. 1/92, dated 7-1-1992. The principal accused in this case namely Jauseph is still absconding since the date of incident.

3. According to the prosecution case the only allegation against the petitioners is that they had asked the principal accused to kill Raees Ahmed as he Was murderer of their brother. The learned counsel for the complainant and the State stressed that the words spoken by the petitioners are attracted by section 34, P.P.C while contention of the learned Advocate for the petitioners is otherwise. In the light of this admitted position of factual aspects the legal point for consideration of this Court is as to whether reasonable grounds exist to believe that the petitioners were vicariously liable under section 34, P.P.C. to the charge regarding commission of offence as alleged against them or not. Admittedly the murder was committed by absconding accused Jauseph. Therefore, I am of the view that if the principal accused had acted independently then the present petitioners cannot be held responsible or, at least, their act cannot be attracted by section 302, Qisas and Diyat Ordinance read with section 34, P.P.C. and if he had acted under the influence and instigation of the petitioners then their role in this murder cannot be easily ignored. On the basis of this proposition it can be said without any hesitation that effects of uttering such words as alleged against the petitioners or of Lalkara can be different in different cases on account of different circumstances of each case.

4. The learned counsel for the complainant while opposing bail, has relied upon the case of Hakim Ali and 3 others v. The State 1979 SCMR 114 in support of his contention but I think that the said case does not serve any purpose of the learned Advocate because in the said case, petitioner had elasped prosecution witnesses to enable and facilitate co-accused to inflict knife injuries to the victim while in the case in hand the petitioners not played any such role.

5. It is also noticeable that one of the petitioners namely James Sardat had been candidate of Provincial Assembly as well as elected Councillor. It has been urged by the learned counsel that the said petitioner is being involved and defamed on account of political rivalry as well as due to his being the main witness in the case pending against Raees Ahmed (now deceased), but, all the grounds can be taken into consideration if they are present as a defence at the time of final arguments after conclusion of the case against the present petitioners. The ground of enmity, on the basis of other pending cases, are usually urged by the learned Advocates not only at the bail stage but also at the time of final arguments after conclusion of criminal case. It is, therefore, necessary to point out that in my view, such ground may be helpful to accused persons in counter-cases arising out of the same incident but this ground may be the most dangerous and fatal for an accused if the enmity relates to such cases which do not arise out of the same incident because such ground can be treated as the motive of fresh murder committed by an aggrieved party. For example, in the present, the ground of enmity may be fatal against accused Jauseph at bail stage although it may be fruitful at the final stage. So far as the allegation of investigating Jauseph by the petitioners to kill the deceased is concerned nothing can be said at this stage as to whether the principal accused Jauseph had acted independently of under the influence of the petitioners unless evidence of the concerned witnesses is recorded by the Court to reach any definite conclusion.

6. The object of pre-arrest bail is to save innocent persons from being unnecessarily harassed due to their arrest in the case instituted against them with ulterior motives. In the light of circumstances as discussed above, it would not be proper to deprive the petitioners from getting their pre-arrest confirmed particularly on the strength of this reality that there are sufficient grounds for further inquiry into their guilt which attract subsection (2) of section 497, Cr.P.C.

7. Pre-arrest bail of the petitioner is, therefore, confirmed on the same terms and conditions. N.H.Q./J-8/K????????????????????????????????????????????????????????????????????????? Pre-arrest bail allowed.