2018 PLP 243 (YLRN)

KHADIM HUSSAIN TUNIO, J.

Through instant bail application, applicant Aamir son of Shaman Korai seeks his release on post-arrest bail in case registered vide Crime No. 40/2017 at Police Station Mirokhan (District Kamber-Shahadakot @ Kamber), for offence punishable under sections 302, 201, 504, 337-H(2), 34, P.P.C. The applicant approached the trial court with the same prayer, which has been declined by learned 1st Additional Sessions Judge, Kamber, vide order dated 15.5.2018.

2. In nutshell, accusation is that the applicant along with co-accused with their common intention committed Qalt-i-amd of deceased Muhammad Mithal, for which FIR was registered.

3. Learned counsel for the applicant contended that name of the applicant does not transpire in the FIR that no specific role is assigned to the applicant; that name of the applicant has been disclosed by the complainant in his further statement, in which he has shown mere presence of the applicant; that case has been challaned and charge has been framed and matter is fixed for recording of evidence, therefore, learned counsel prays for grant of bail. In support of his contentions, learned counsel placed his reliance upon case of Rehmatullah v. Fazal Baqi and another (1998 SCMR 455), Abid Ali alias Ali v. The State (2001 SCMR 161), and case of Nazeer v. The State (2018 PCr.LJ Note 42).

4. Conversely, learned A.P.G. in view of submission made by learned counsel for applicant half heartedly opposed bail plea. However, learned Advocate for complainant vehemently opposed grant of bail while arguing that applicant has shared common intention with the principal accused; that enmity existed between the parties; that case is fixed for recording of evidence; complainant and witnesses are attending the court regularly but the applicant is avoiding to proceed with the case. Learned counsel cited case of Rana Muhammad Safdar v. Gulzar Ali alias Papoo and another (1999 PCr.LJ 1).

5. I have given due consideration to the submissions made by the learned counsel for parties and perused the record. Perusal of record shows that name of applicant is not disclosed in the FIR; that no specific role is assigned to the applicant; that name of applicant has been disclosed in further statement by complainant; that mere presence of applicant has been shown at place of incident as per further statement of complainant, as such the question of vicarious liability or sharing common intention by applicant with co-accused is to be determined after recording pro and contra evidence at trial; that nothing has been recovered from possession of the applicant; that enmity existed between the parties, which is a double edged sword and cuts both sides. As such, the case of applicant required further enquiry.

6. In case of Tahir Abbas v. The State (2003 SCMR 426), the Hon'ble Supreme Court of Pakistan has discussed upon veracity of "further statement" and has held/observed as under:-- " .The complainant however subsequently on 17.4.2001 made a supplementary statement in which he involved the petitioner also. The petitioner is living in the same locality at a distance of about few yards and the parties were known to each other, therefore, there was no explanation as to why if the petitioner was involved, he was left out when the FIR was got registered as the ground of mistake about the identity of the petitioner prima-facie is not available".

7. The Hon'ble Supreme court in another case of similar nature, i.e. case of Noor Muhammad v. The State (2008 SCMR 1556), has held as under:-- "

6. It is an admitted fact that the complainant did not mention the name of the petitioner and co-accused in the FIR but later on implicated them in the commission of offence through supplementary statement recorded before the Investigating Officer on the same day. The complainant has failed to disclose as to how he came to know the name of the accused. In case the contents of the first information report and supplementary statement are put in juxtaposition then it is crystal clear that the complainant has taken altogether U-Turn from his previous stand. This fact makes it a case of further inquiry under section 497, Cr.P.C. Moreover, since name of the petitioner and co-accused were not mentioned in the FIR and was mentioned in the supplementary statement by complainant which fact also brings the case within the ambit of further enquiry".

8. Similar point was again examined by the Hon'ble Supreme Court in case of Abid Ali alias Ali v. The State (2011 SCMR 161) arid it was observed as under:-- " .. It is admitted fact that name of the petitioner is not mentioned in the FIR but his name was included in the list of accused in supplementary statement. There is no explanation available in this regard, therefore, the case of the petitioner falls under the category of further inquiry. See, Tahir Abbas v. The State (2003 SCMR 426). Although the challan has been submitted in the Court and the case was fixed for hearing but still prima facie the case of the petitioner was fixed for hearing but still prima facie the case of the petitioner appears to be one of further inquiry and is covered under provisions of section 497, Cr.P.C, then it becomes a right of accused that he be released on bail and practice of refusal in such cases where challan is submitted should not be bar to refuse a right. See, Muhammad Ismail v. Muhammad Rafique and another (PLD 1989 SC 585). It is also settled principle of law that observations made by superior Courts, dealing with the bail matter are always tentative in nature".

9. Furthermore, similar view has also been taken by this court in case of Muhammad Mithal alias Imam Bux v. The State (2012 YLR 515), Amir Bux v. The State (2012 YLR 668) and Abdul Rasheed and another v. The State (2012 YLR 486). Perusal of above citations shows that in similar circumstances, this Court has extended concession of bail to the accused.

10. The case law cited by learned Advocate for complainant is not applicable to the instant case, as facts and circumstances of referred case are distinguishable from the facts and circumstances of case in hand. In the case relied upon by learned counsel, the accused was nominated in the FIR with specific role of causing firearm injury to the deceased and bail grnated by trial Court was cancelled.

11. A tentative assessment of all the above factors and the material available on record makes the case of applicable one of further enquiry in terms of subsection (2) of section 497, Cr.P.C. Accordingly, the applicant is admitted to post-arrest bail upon his furnishing solvent surety in the sum of Rs.400,000/- (Four hundred thousand rupees) and P.R. bond in the like amount to the satisfaction of trial Court. MQ/A-77/Sindh Bail granted.