2023 P Cr (PLP)

AFTAB AHMED GORAR, J.

Through instant bail application, applicants/accused Abdul Qudoos and Abdul Hafeez both sons of Anwar Din seek post-arrest bail in Crime No.38/2020 Police Station, Sobhodero district, Khairpur for offence punishable under sections 302, 148, 149, P.P.C. Earlier their bail application was declined by learned I-Additional Sessions Judge (MCTC), Khairpur vide order dated 13.02.2021.

2. The allegation against present applicants/accused are on fateful day of incident, in the house of complainant Naveed Ahmed Solangi, present applicants/accused caught hold the arms of deceased Iftikhar Ahmed while principal accused Shahanshah made a direct fire of pistol upon deceased Iftikhar Ahmed which hit him on his abdomen, which caused his death, then accused persons ran away from scene of offence. Complainant then appeared at Police Station and lodged FIR.

3. Learned counsel for applicants contends that the applicants have falsely been involved in this case by the complainant with mala fide intention and ulterior motives; that this is the counter-blast of the FIRs registered against the co-accused Abdul Qudoos, basically the role which attributed to the applicants/accused is only that they caught hold of the deceased and facilitated the co-accused and on such principle of law that sharing of vicarious liability or common object always requires further inquiry; that vicarious liability is to be seen at the time of trial after recording evidence; that no direct allegation existed against the accused of committing murder of deceased; that no overt act has been attributed to the present applicants/accused in the commission of offence rather than, even if they were armed with lethal weapons and they only caught hold of the deceased from his arms; that case has been challaned and applicants are no more required for further investigation. By contending so, he prayed for grant of bail to the applicant. He relied upon case of

1. Ghulam Rasool v. The State (PLD 2010 Karachi 384),

2. Qassim v. The State (2001 YLR 214),

3. Muhammad Irfan v. The State (2010 YLR 2839),

4. Tahir Abbas v. The State and another (2014 YLR 1242),

5. Khadim Hussain v. The State and another (2012 YLR 969 Lahore),

6. Basharat Hussain v. Ghulam Hussain and others (1978 SCMR 357),

7. Shahid v. The State (1994 SCMR 393),

8. Muhammad Hanif v. The State (2003 PCr.LJ 1688).

4. As against, Mr. Nisar Ahmed Bambhro, Advocate for complainant has vehemently opposed for grant of bail to the applicants on the ground that this is broad day-time incident, whereas the accused are cousins of deceased, thus there could be no case of mistaken identity; that after death of father of deceased after 2-1/2 months the accused have done away the life of young man aged about 33 years in presence of the house inmates and his mother has lost her sense; that the intentions of the accused was quite clear that they have to do away the deceased and in the preplanned commission of incident however, the intention and identification cannot be mistaken. He relied upon case of

1. Khadim Hussain and 5 others v. Sher Afzal and another (2000 PCr.LJ 974),

2. Muhammad Waseem Nawaz alias Chhina Loola v. The State (2002 SCMR 1279),

3. Shahzadi Sonia v. The State (2014 PCr.LJ 630),

4. Shahzaman and 2 others v. The State and another (PLD 1994 Supreme Court 65),

5. Haji Gulu Khan v. Gul Daraz Khan and another (1995 SCMR 1765) and Haji Punhal v. The State (PLD 2002 Karachi 99).

4. Mr. Aftab Ahmed Shar, learned Additional Prosecutor General adopted the same arguments however, he further argued that applicants and other co-accused were identified by the complainant party and their names have been transpire in the FIR with specific role of caught hold deceased; that applicants were available at spot and had participated in the alleged crime; that no enmity has been shown to have false implication of applicants/accused in the commission of crime and they have shared their common intention with co-accused and have facilitated to main accused; that nothing is available on record to show that complainant party had any motive or reason to falsely implicate accused in the case; that deeper appreciation of evidence cannot be permitted at bail stage; that applicants are vicariously liable for the offence; that offence falls within the prohibitory clause of section 497, Cr.P.C; By contending so, he prayed for rejection of bail.

6. Heard arguments of learned Counsel for the parties and perused the record meticulously. Admittedly, the dispute between applicant and complainant party is over a house. Even otherwise, the role attributed against present applicants was to have caught hold of the deceased while accused Shahanshah caused pistol fire shot at deceased. Such allegation against accused/applicants did not appeal to a prudent mind as they would also be putting their own lives at stake by catching hold of the deceased at the time when the co-accused was inflicting fire shot injuries, such type of allegation was very easy to level but difficult to prove. Furthermore, the applicant No.1 Abdul Qudoos armed with Kalashnikov while applicant No.2 Abdul Hafeez armed with hatchet but they did not use the same. No direct allegation existed against the accused of committing murder of deceased. In the instant case, the fight had flared-up all of sudden and the element of premeditation is yet to be determined after recording evidence whether present applicants/accused and co-accused are vicariously liable for the act as alleged or otherwise. The Honourable Supreme Court of Pakistan has held in the dictum laid down in the case of Shahid v. The State reported in 1994 SCMR 393 wherein under the identical facts and circumstances has been pleased to hold that; "Accused was attributed the role of getting hold of deceased when his co-accused was inflicting dagger blows on his. Another accused who had allegedly given kicks and fist blows to the deceased had been extended the concession of bail. Contentions that the accused on the principle of consistency was also entitled to bail and that it was yet to be determined whether the accused had facilitated the commission of the offence to attract section 34, P.P.C. making out a case for further inquiry, had substance. Petition for leave to appeal was converted into appeal and same was allowed in circumstances and the accused was released on bail accordingly." Indeed, on merits the applicants have prima facie got good case for grant of bail, therefore, relying upon the dictum laid down in the cases supra, I am of the opinion that applicants have made out a case of further inquiry within the meaning of subsection (2) of section 497, Cr.P.C. The cake law relied upon by learned Counsel for complainant is quite distinguishable to the case in hand. The applicants are behind bars since their arrest and trial has not yet concluded. Investigation in the case was complete therefore, accused were no longer required to Police for further investigation as such the incarceration of accused/applicants would serve no useful purpose and case against them fell within the ambit of further inquiry.

7. In view of above, I am of the considered view that applicants/accused have been able to make out a case for grant of bail. Accordingly, instant bail application is allowed. The applicants/accused, namely, Abdul Qudoos and Abdul Hafeez are granted post-arrest bail subject to their furnishing solvent surety in the sum of Rs.300,000/- each (Rupees Three lacs) and PR bond in the like amount to the satisfaction of the trial Court.

8. Needless to mention here that observation made herein above are tentative in nature and trial Court may not be influenced of the same and decide the case on its own merits as per evidence and the material made available before it. Bail application stands disposed of in the above terms. SA/A-18/Sindh Bail granted.