2019 P Cr (PLP)

KHADIM HUSSAIN TUNIO, J.

Through captioned bail application, the applicant Ali son of Naboo Oghahi seeks post arrest bail in crime No.43/2017, under sections 302, 114, 148, 149, 506(2), 120-B, P.P.C. 14, Foreigner Act. Earlier his bail plea was declined by the learned 1st Additional Sessions Judge Kandhkot vide order dated 20.09.2016.

2. Brief facts of the prosecution case as unfolded in the FIR lodged by complainant Mohammad Moosa on 12.06.2007 at about 1115 hours, stating therein that there is old murderous dispute between complainant and accused Abdul Qadir Oghahi and others over the matter of agricultural land, whereby complainant himself and through the nekmards of the locality approached to accused Abdul Qadir Oghahi and others for settlement of dispute and they were ready to give Faisla and fine to the accused, but Abdul Qadir and Abdul Sattar Oghahi were not be set to effect Faisla with them and were saying that they will get revenge of murder of Abdul Aziz from them. On the fateful day he along with his cousin Allah Juriyo, Hidayatullah and Ali Mohammad had left their village for Ghouspur Town with some personal work. At about 11:00 a.m. they reached at Ghareebdass Mandir in street leading towards Mandir near Kirpal Dass his cousin Ali Mohammad was 15 paces ahead from them, wherefrom street of southern side accused Abdul Majeed, Abdul Wahid, Abdul Jabbar, Mujeeb Rehman alias Mujoo, Habib Rehman alias Habib Abdul Subhan, Abdul Khalique alias Khaliqi, Abdul Malik alias Malikoo, Abdul Hameed, Abdul Ghafoor, Ghulam Yasin, Jawed along with three unidentified assailants armed with lethal weapons emerged there and on the instigation of accused Abdul Majeed, Abdul Wahid and Abdul Jabbar to commit the murder of Ali Mohammad Oghahi in retaliation of murder of deceased Abdul Aziz, co-accused Mujeeb Rehman, Habib Rehman alias Habib and Abdul Majeed made straight firing from their guns at the cousin of complainant namely Ali Mohammad with intention to kill him, which hit him. Meantime, accused Abdul Majeed, Abdul Wahid and Abdul Jabbar pointed their K.Kovs towards them and warned the complainant party to remain silent, therefore, due to fear, being empty handed, the complainant party remained mum. In the meantime, accused Abdul Malik alias Malikoo and Abdul Khalique came in front of Ali Mohammad and fired from their guns upon Ali Mohammad with intention to murder him, which hit him, subsequently all the accused persons made firing in backwards upon Ali Mohammad with intention to commit his murder, which hit him on his back and arms and Ali Mohammad raised cries and fell down on the ground. After that the accused persons went away through road while raising slogans. Complainant party went and found Ali Mohammad having firearm injuries on his stomach, chest, near the chest at right side, right arm, right shoulder, right side of back and left side of back, blood was oozing, he was dead. After leaving witnesses at dead body of Ali Muhammad, complainant went to police station and lodged FIR.

3. Learned counsel for applicant submits that applicant is innocent and has falsely been implicated in this case; that applicant has nothing to do with the alleged offence; that PWs are interested witnesses and no independent witness has been cited in this case; that name of the applicant does not transpire in the FIR; that features/descriptions and marks of identification of applicant are not disclosed in the FIR; that no specific part is assigned to the applicant; that nothing has been secured from the possession of applicant; that applicant is in custody; that the applicant may be admitted to bail.

4. On the other hand Syed Sardar Ali Shah, learned A.P.G. for State has vehemently opposed the grant of bail to the applicant.

5. The learned counsel for complainant also opposed the bail application and argued that applicant has been implicated by the PWs in their 161, Cr.P.C. statements; that the applicant has shared his common intention with the principal accused; that there is sufficient material to connect the applicant for offences with which he stands charged.

6. Having heard learned counsel for applicant, complainant and A.P.G and perused the relevant record carefully.

7. From the perusal of record it appears that role of causing fire arm injuries to deceased Ali Muhammad is attributed to the co-accused; that from the perusal of record it also appears that name of the applicant does not transpire in the FIR; that from the perusal of record it further transpires that the name of the applicant has been disclosed by the PWs in their 161, Cr.P.C. statement; that the applicant is in custody that investigation of this case has already been completed; that challan has been submitted before the trial court hence, physical custody of the applicant is not required at this stage for the purpose of investigation. It is trite that the concession of bail ought not to be withheld by way of premature punishment. In case reported as Muhammad Tanveer v. The State through Anees-ul-Arfeen (2014 PCr.LJ 1096). It has been observed, that in the next episode, it is observed that through out the allegations, no role has been attributed to the present petitioner except his presence at the scene of incident. The petitioner neither alleged to have fired in the air nor he facilitated any of the co-accused, nor made any Lalkara or extended threats of any kind. Therefore, mere presence of the petitioner at the scene of incident creates doubt about vicarious liability, ultimately, his role will have to be determined during trial after recording of evidence and the material available on record. Such role assigned to the present petitioner creates a reasonable doubt about his participation in the commission of instant offence. It has also been observed in case titled as Allah Ditta v. The State and another (2014 PCr.LJ 658), that whenever no overt act is ascribed to the petitioner/accused, the superior courts are lenient towards admitting him to bail. Even otherwise, grant of bail does not mean that the accused has been acquitted; rather the custody is handed over in the hands of the surety". It has been observed in case titled as Muhammad Ismail v. Muhammad Rafique and another (PLD 1989 SC 585), the august Supreme Court of Pakistan has observed that when otherwise case against the accused is covered under subsection (2) of section 497, Cr.P.C. he is entitled to the concession of bail as a matter of right. Moreover, bail could be granted if the accused has good case for grant of bail on merits and his absconsion would not come in the way while granting him bail. Reliance is placed upon case of Mitho Pitafi v. The State (2009 SCMR 299).

8. For what has been discussed above, I am of the opinion that applicant/accused has made out case of further inquiry, therefore he is admitted to bail subject to his furnishing solvent surety in the sum of Rs.500,000/- (one lac)(sic.) and P.R bond in the like amount to the satisfaction of trial Court vide short order dated 17.4.2017. These are the reasons for the same.

9. Whatever stated above is tentative in nature and will not influence the mind of the learned trial court at the trial while deciding the case on merits. MQ/A-100/Sindh Bail granted.