2001 PLP 3143 (YLR)

S.497(2)

Penal Code (MV of 1860), S.302

Bail, grant of

Case of further inquiry

Judicial confession of the accused that they were attacked by the complainant party and he ran away from the scene whereas co-accused fired upon the deceased appeared to be exculpatory in nature and its legal sanctity was yet to be examined at the time of trial

No active role had been assigned to the accused in commission of offence

Case of accused required further inquiry

Bail was granted. Ch. Aftab Ahmed Warraich for Applicant. Ali Azhar Tunio, Asstt. A.-G. for the State. Date of hearing: 30th July, 2001 The applicant is involved in Crime No.48 of 2000, of Police Station Umarkot under section 302, P.P.C. and is facing trial in Sessions Case No.28 of 2000, pending in the Court of IInd Additional Sessions Judge, Mirpurkhas. The brief facts of the prosecution case as disclosed by complainant Mir Muhammad are that some days prior to the incident his brother had restrained accused Pahar Noohani and Dino alias Khano Khaskheli from visiting their Muhallah as they were not bearing good character. On 20-5-2000 at about 1230 hours night they were returning from their lands when they saw that two persons were coming from the side of their village. They were identified on torch light to be accused Pahar and the present applicant Allah Dino. It is stated in the F. I. R. that his brother challenged them as to why they had come to their village. Upon which the present applicant replied that who were they to restrain them from visiting the village. The brother of complainant tried to catch hold of them but accused Pahar Noohani fired from his pistol towards his brother. The brother of complainant sustained fire-arm injury on the left side of his chest. He died on the spot. The dead body was removed by complainant and one Dildar Ali to their village. They narrated the aforesaid facts to Nekmard Mir Muhammad Junejo who directed him to lodge the F. I. R. The police recorded the F.I.R. and took up investigation. On completion of investi gation the challan was submitted in the Court. It is contended by the learned counsel appearing for accused that F.I.R. is belated by about 8-1/2 hours and no explanation for this inordinate delay is furnished by the complainant. The enmity between the parties is admitted in the F.I.R. There is no ocular evidence of the incident except that of complainant Mir Muhammad, who is real brother of deceased. It is pleaded that this is an unseen incident which has taken place in an abandoned place and the dead body was found in the field at morning time. The prosecution story has been concocted and therefore, this belated F.I.R. was lodged in the morning. The case of present applicant is distinguishable from main accused Pahar. The applicant was empty-handed and has played no active role in the commission of offence. The applicant was arrested on 21-5-2000 and is in Jail for the last more than about 14 months. The judicial confession of applicant is exculpatory. The applicant has stated in his judicial confession that they had gone towards Talho Malho for excursion when they were attacked by three persons. The present applicant escaped from the scene of offence whereas accused Pahar fired at deceased. The vicarious liability of present applicant Allah Dino is yet to be established at the time of trial. Mr. Ali Azhar Tunio, learned Assistant Advocate-General Sindh, in view of the aforesaid arguments has conceded to the bail plea of the present applicant on the ground that his case is distinguishable from the case of main accused Pahar and no active role is ascribed to him. The F.I.R. is delayed by about 8-1/2 hours and no explanation for the delay is furnished by the complainant. The incident is said to have been witnessed by complainant Mir Muhammad who is real brother of the deceased but in view of the delay in lodging the F.I.R., his presence at the scene of offence at relevant night hours is yet to be proved. The incident has taken place at night hours and the role ascribed to the present applicant is that he was empty-handed and did not cause any injury to the deceased. He was arrested on 21-5-2000 and has remained in Jail for more than about 14 months. The judicial confession of applicant shows that the accused were attacked by the complainant party and applicant succeeded in running away from the Wardat whereas co-accused Pahar fired at deceased. The judicial confession appears to be exculpatory and its legal sanctity is yet to be examined at the time of trial. No active role has been assigned to the present applicant in the commission of offence. There appear no reasonable grounds to believe that the accused is guilty of the offence falling within prohibitory clause of section 497(1), Cr.P.C. The case of applicant requires further inquiry. The accused/ applicant is granted bail in the sum of Rs.2,00,000 (Rupees two lacs) and P.R. Bond in the like amount to the satisfaction of the trial Court. J.A.M./A-264/K Bail granted.