2017 PLP 197 (YLRN)

AFTAB AHMED GORAR, J.

Applicants/accused Ghulam Dastagir and Pir Khalid, both by caste Sarhancli, seek post arrest bail in Crime No.51/2016 registered at Police Station Radhan Station, District Dadu, under sections 302, 324, 337-H(2), 147, 148, 149, 504, P.P.C. Their bail application was rejected by the learned 2nd Additional Sessions Judge, Mehar vide order dated 08.9.2016.

2. According to the case of prosecution, on 10.6.2016 complainant Manzoor Ali, his brother Asadullah and cousins Fida Hussain, Hakim Ali and relative Akhtiar, while going from their village to Radhan Town on two motorcycles, were waylaid at about 10.00 a.m. near the "Ara" machine of Ali Asghar Zardari on the link road leading from Radhan to Chowdagi, by accused persons, namely, Peer Shamim Akhtar, Peer Rafiuddin, Ghulam Dastagir, Peer Aftab Ahmed, Peer Khalid, all armed with revolvers and gun. It is alleged that on account of dispute over fishpond, accused Peer Shamim Akhtar fired at Fida Hussain, accused Peer Rafiuddin fired at Asadullah and accused Peer Aftab Ahmed fired at complainant, who all received injuries and fell down on the ground and then all the accused persons by giving kicks, fist and butt blows to Asadullah fled away. Fida Hussain passed away at the spot, while complainant and his brother Asadullah went to police station, obtained letter for treatment. After burial of dead body of deceased Fida Hussain, complainant went to police station and lodged FIR.

3. Mr. Azizullah M. Buriro, learned Counsel for the applicants/accused contended that the main role of firing at the deceased Fida Hussain is assigned to co-accused Peer Shamim Akhtar. He further contended that though the present applicants are shown to be armed with gun and revolver respectively, but no overt act has been attributed to them, and general role of giving kicks, fist and butt blows to injured Asadullah and making ineffective aerial firing is assigned to them and co-accused. Learned Counsel contended that the question of sharing common intention is to be determined at trial and case against the applicants requires further inquiry, therefore, the applicants are entitled to concession of bail. In support of his contentions, learned Counsel relied upon the case of Yaroo v. The State (2004 SCMR 864) and Shabbir v. The State (2003 MLD 1715).

4. On the other hand, Mr. Khadim Hussain Khooharo, learned DPG, appearing on behalf of the State, opposed the bail application and contended that the incident is of broad daylight, the applicants are nominated in the FIR and they have played the role of facilitating the main accused in committing murder of deceased Fida Hussain and causing injuries to complainant and PW Asadullah, which reflects that they have shared common intention in the commission of alleged offence, therefore, they are not entitled for concession of bail.

5. I have carefully heard the learned Counsel for the parties, perused the contents of the FIR and other material collected during investigation and have gone through the case law cited at the bar.

6. It is admitted fact that no overt act is assigned to the present applicants and the role attributed to them is that they and co-accused apart from making aerial ineffective firing over the complainant party, gave kicks, fist and butt blows to injured Asadullah. Enmity between the parties over fishpond is admitted in the FIR. The applicants are not alleged to have fired either upon the deceased or even at the complainant or any of the P.Ws. The applicants are in jail for the last about 1-1/2 years. In view of the dicta laid down in the case of Yaroo v. The State (2004 SCMR 864), the case insofar as the nature of role allegedly played by the applicants in the alleged occurrence appears to be of further enquiry. Accordingly, the bail application is allowed. The applicants are directed to be released on bail subject to furnishing_ solvent surety in the sum of Rs.300,000/- (Rupees Three Lac only) each and P.R. bond in the like amount to the satisfaction of the trial Court. WA/G-1/Sindh Bail granted.