2020 PLP 99 (YLRN)

AFTAB AHMED GORAR, J.

Through instant bail application, applicant Nasrullah son of Ali Nawaz Janwri, who has been booked in Crime No.119/2018 registered at Police Station, Abad District, Sukkur for offences punishable under Sections 302, 324, 457, 114, 148, 149, P.P.C., seeks post-arrest bail. Earlier his bail application has been declined by II-Additional Sessions Judge, Sukkur vide order dated 29.03.2019.

2. Facts of prosecution case in brief are that Complainant Mohammad Dino lodged FIR on 09.12.2018 at Police Station stating that Aslam Parvez was his son. On 08.12.2018 there was a circumcision rite of sons of nephew of complainant in which he, his son Aslam Parvez and Mansoor Hussain participated, Sultan Mehmood and others were also participated in the Valima and they exchange harsh words with Aslam Parvez and complainant leaving the same came at their home. It is further stated that he, his son Aslam Parvez and nephew Zain-ul-Abidin were available in the house, it was about 10:30 p.m. accused Sultan Mehmood son of Ali Nawaz having dagger, Nasrullah son of Ali Nawaz having knife,

3. Kaleemullah son of Ali Nawaz having Pistol,

4. Noorullah son of Ali Nawaz armed with pistol,

5. Naeemullah son of Abdullah having dagger,

6. Amanullah son of Abdullah having hatchet,

7. Zafrullah son of Ali Nawaz having cudgel all by caste Janwri entered into the house, on coming accused Noorullah instigated others to kill complainant party on his instigation accused Sultan Mehmood attempted with dagger on the left side of chest on Aslam Parvez while accused Naeemullah attempted with dagger to complainant. The accused Nasrullah gave knife blows to the complainant's son namely Mansoor Hussain on his abdomen and back side of chest, they became injured and in the meanwhile neighbourers came who rescued the complainant party then accused went away by abusing. Complainant appeared at Police Station, got letter for treatment went to the Civil Hospital where Aslam Parvez succumbed to the injuries while complainant and his son Mansoor Hussain got treatment and after funeral rite complainant lodged FIR at Police Station.

3. Learned Counsel for the applicant contended that applicant has falsely been implicated by the complainant due to matrimonial enmity. He contended that present applicant has been attributed injuries inflicted to the second son of complainant Mansoor Ali which injuries do not fall within the prohibitory clause of Section 497, Cr.P.C. He further submitted that all the PWs are related inter se and no independent person has been cited as witness. He further contended that co-accused Naeemullah, Amanullah and Kaleemullah have already been granted bail by the learned trial Court hence the case of present applicant is on better footing to that of co-accused who have been granted bail by the learned trial Court. He contended there is delay in lodging of the FIR which has not been explained by the complainant. By contending so, he prayed for grant of bail. He relied upon the case of Pervaiz Khan v. The State (PLD 1998 Lahore 84),

2. Abdul Aziz v. The State (1996 SCMR 1693) and Pir Bakhsh v. The State and another (2010 MLD 220)

4. As against, learned Deputy Prosecutor General assisted by learned Counsel for complainant vehemently opposed the grant of bail and supported the impugned order passed by learned II-Additional Sessions Judge, Sukkur. They contended that this is a case of a brutal murder of one innocent person and injuries caused to the complainant and another son Mansoor. They prayed for dismissing the bail application. They relied upon the case of Munawar v. The State (1981 SCMR 1092)

5. I have considered the arguments advanced by learned Counsel for parties and have gone through the record. Perusal of record reflects that name of present applicant appears in the FIR with specific role as he armed with knife and caused knife blows to injured Mansoor on his abdomen and back side which is corroborated by medical evidence and he also shared a common intention with the other co-accused in causing the death of deceased and has participated in the commission of offence hence, principle of vicarious liability is attracted to the case of present applicant. So far grant of bail to co-accused Naeemullah, Amanullah and Kaleemullah by the trial Court is concerned, their case is on different footings hence, the rule of parity is not attracted to the case of present applicant. Further, the complainant has alleged motive that applicant/accused exchanged hot words with deceased Aslam Parveiz and he has been brutally murdered which seems to be deeper appreciation of evidence at the time of trial. So far as the delay in lodging the FIR is concerned, prima facie, the FIR itself shows that delay is explained that on the very day of the incident complainant took the dead body to Police Station and got letter for treatment and after post-mortem and funeral of the deceased he appeared at Police Station and lodged the FIR. The Honourable Supreme Court of Pakistan has held in the dictum laid down in the case reported in 1996 SCMR 1765 "that delay in lodging the FIR alone is never considered a circumstance sufficient for grant of bail in a case of capital punishment". No doubt in the cases cited by the learned Advocate, bail was granted but in each one of them, the facts and circumstances were quite different and thus they were distinguishable. The prosecution witnesses in their 161, Cr.P.C. statements have fully supported the version of FIR. The offence for which the applicant/accused has been charged falls within prohibitory clause of Section 497(2), Cr.P.C. In view of above, I am of the considered view that the applicant/accused has failed to make out a case for grant of bail. Accordingly, the bail application is dismissed. Bail application stands disposed of in the above terms. SA/N-58/Sindh Bail declined.