2023 P Cr (PLP)

ADNAN-UL-KARIM MEMON, J.

Applicant seeks bail after arrest in Crime No.15/2020, of Police Station Darya Khan Mari, District Naushahro Feroze, registered for offence under sections 302, 114, 342, 506/2, 337-H(2), 34, P.P.C., read with section 7, ATA, as his earlier bail plea before the trial Court i.e. Judge, Anti-Terrorism Court, Naushahro Feroze was declined by means of order dated 20.04.2020, hence this application.

2. The prosecution has set up the case against the applicant on the allegations that on 15.02.2020 at about 1500 hours applicant instigated co-accused Mst Salma, Waqar Khokhar and Akhtar Khokhar to kill Mst Shahnaz Ansari. Per prosecution, they acted upon and fired upon her. She was taken to PMC Hospital Nawabshah for treatment but in the meanwhile succumbed to injuries and died. Such FIR was registered on 16.2.2020 at about 1500 hours. Investigation Officer recorded statements of eye-witnesses under section 161, prepared Mushirnama of the place of incident, got conducted chemical examination of recovered articles from co-accused and obtained its report, arrested Applicant on 17.2.2020 and submitted Charge Sheet against present Applicant and others before learned Judicial Magistrate on 16.3.2020. Earlier the Applicant moved Bail Application No.11 of 2020 in the court of learned Anti-Terrorism Naushahro-Feroze, who dismissed the same vide order dated 20.4.2020 on the premise that the applicant was nominated in the FIR with a specific role, who facilitated main accused to commit the murder of Mst. Shahnaz (deceased). Hence, the Applicant has approached this Court through instant Bail Application.

3. Mr. Ghulam Shabbir Dayo, learned counsel for the applicant has argued that false case has been registered against him and he is not involved in the case, his false implication in the alleged crime cannot be ruled out; that so far as the allegation of confining certain witnesses in a room is concerned, the same do not fall within the ambit of section 302, P.P.C, therefore the Applicant cannot be saddled with the offence of murder; that the Applicant is aged about 81 years old and sick and infirm within the meaning of section 497, Cr.P.C. He has, therefore, earned his right to be released on bail on the aforesaid ground; that applicant cannot be kept behind the bars as punishment as he is behind the bars for the last many months. To support the plea, learned counsel has relied upon the medical report which has been sent in compliance with the order of this Court dated 6.5.2020. That a specific role has been attributed to the co-accused who allegedly made firing upon the deceased, whereas neither the applicant was present at the time of occurrence nor overacted. It is contended that except making the allegation of instigation, there is no other allegation and not an iota of legal evidence available against the applicant to sustain the prosecution case; that there is no allegation the applicant made any consultation or conspiracy with the principal accused and there is also no evidence on record that applicant made firing upon the deceased or caused any injury to the alleged witnesses; that the Applicant has no motive to commit murder of victim. He concluded by stating that the Applicant is entitled to the concession of bail.

4. Mr. Ayaz Ali Gopang learned counsel for the complainant has fully supported the impugned order passed by the learned trial court refusing post arrest bail to the applicant and he argued that all the accused with common intention were present at the place of incident to murder the sister of the complainant and it is evident from the contents of FIR that present applicant was also present at the spot who instigated the co-accused to commit the murder due to preplanned conspiracy and all accused persons facilitated each other for committing the murder of complainant's sister, confined eye-witnesses inside the room and all are vicariously liable; that ample evidence is available with the prosecution to connect the present applicant with the commission of such offense; that there are circumstances available making out a prima facie case against the applicant for having acted in furtherance of their common intention to kill the sister of the complainant; that nothing was/is available on record to show that complainant party had any motive or reason to falsely implicate the accused in the case. In support of his arguments, the learned counsel for complainant relied upon the case of Malik Aqeel v. The State (2011 SCMR 170) and the case of Mulo Ahmed v. The State (2011 MLD 1171).

5. The learned Additional P.-G. for the State formally supported the impugned order and opposed the bail application on the ground that all the accused persons with their common intention committed the murder of complainant's sister, but could not point to any material indicating conspiracy or that the murder was committed due to a preplanned scheme. He also did not refute the age of the applicant or his medical condition.

6. We have heard learned counsel for Applicant, learned Additional P.G for the State as well as learned counsel for the Complainant, and perused the material available on record and case-law cited at the bar.

7. We are conscious of the fact that while deciding a bail application this court has to make tentative assessment of the record. In this regard we are fortified by the decision of Honorable Supreme Court of Pakistan rendered in the case of Shahzad Ahmed v. The State (2010 SCMR 1221).

8. Tentative assessment of record reflects the following aspects of the case: i) Prima facie there is no evidence on record of this case of conspiracy, previous meeting of minds, and joining hands together by the applicant with the main accused to take the life of the victim. ii) He has admittedly caused no injury on the person of the deceased or any other witnesses. iii) No role has been attributed to him except alleged instigation and forcing family members to be inside the room. iv) The occurrence in this case rooted through a dispute over the landed property. v) It is for the learned trial Court to determine, with regard culpability of applicant with murder of victim after recording evidence, pro and contra, whether the applicant instigated or otherwise and is vicariously liable for the acts of his co-accused. vi) Secondly, in view of tentative assessment of the record discussed supra the case of Applicant requires further inquiry as provided under section 497(2), Cr.P.C. vii) Medical report which has been sent in compliance with the order of this Court dated 6.5.2020 show that the applicant is suffering from various ailments including renal failure. The report is as follows:-- "With reference to Assistant Registrar, Honourable High Court of Sindh, Bench at Sukkur, letter No.8691/HCSS/2020 dated 06.05.2020 regarding the submission of the medical report in respect of under trial prisoner Haji Muhammad Siddique son of Haji Hassan Khokhar. Most respectfully it is to be submitted that above named under trial prisoner is still admitted at Central Prison Hospital Sukkur since 12.03.2020 as a case of Hypertension (HTN), Chronic Renal Failure (CRF), Bronchial Asthma and Psoriasis. He was examined on 08.05.2020 with the complaint of shortness of breath (SOB). On physical examination his temp: 98.4-F (Afebrile). Pulse.98/min irregular, BP.160/80, Chest congested with no any added heart sounds. His blood Sugar Random (BSR) was done on Glucometer and it was 100 mg (WNL). His ECG was also done at Central Prison Hospital Sukkur showing premature ventricular contractions (PVCs) in different leads. For that he will be examined by visiting Cardiologist in next few days. He has also been under the consultation of Cardiologist at Hyderabad. His previous report of serum creatinine were above the normal level consistant with Chronic Renal Failure. For Psoriasis (Skin ailment) he was also examined by Dr. Ashok Kumar visiting Dermatologist CMMC Hospital Sukkur on 20.04.2020 who advised him the continuation of the previous medicines as prescribed by the Dermatologist Hyderabad. He has also been under the consultation of Orthopedic Surgeon Hyderabad for osteo arthritis (OA) of the right knee joint along with cervical radiculopathy. For that he will be examined by the orthopedic Surgeon GMMC Hospital Sukkur within next week. He was also operated for bilateral contract in 2018 at Karachi, still he is complaining of the impaired vision, for that he will be examined by visiting Ophthalmologist GMMC Hospital Sukkur during his visit at Central Prison Sukkur. His blood sample was sent to the GMMC Hospital Sukkur on 29.04.2020 report showing no any other abnormal findings except reduced level of Hemoglobin (Hb) 9.9 mg. For that he was provided the medicines. He is an aged person about 80 years old suffering from multiple ailments as mentioned above with fluctuation of blood pressure. He is also old case of pulmonary Tuberculosis in 1970 and he had taken the treatment of T.B for the recommended period of 09 months. His medical record is attached herewith for kind perusal. This is submitted for favour of kind information. Chief Medical Officer Central Prison and Correctional Facility Sukkur". viii) The applicant is an old man aged about 81 years and is behind the bars since 17.2.2020. ix) No incriminating material has been recovered from possession of Applicant during the course of investigation. x) record does not reflect that applicant overacted in the alleged incident.

9. The grounds agitated by the learned Counsel for the Complainant cannot be assessed at the bail stage without recording the evidence in the matter. The case law cited by him are distinguishable from the facts and circumstances of the present case.

10. From the above facts and circumstances of the case, we are of the tentative view that the prosecution has yet to establish the culpability of the applicant so far as his role in the aforesaid crime is concerned in the trial besides, that medical report prima-facie suggests that the Applicant is suffering from various ailments, coupled with old age. The Applicant has made out a case of post-arrest bail in the aforesaid crime at this stage. On the aforesaid proposition, we are fortified by the decision rendered by the Hon'ble Supreme Court in the case of Qurban Ali v. The State and others (2017 SCMR 279).

11. These are the reasons for our short order dated 08.07.2020 whereby we have allowed the captioned bail application, and admitted the applicant to post-arrest bail in Crime No.15/2020, of Police Station Darya Khan Mari, District Naushahro-Feroze, registered for offense under sections 302, 114, 342, 506/2, 337-H(2), 34, P.P.C., read with section 7, ATA, 1997, subject to furnishing his solvent surety in the sum of Rs.300,000/- (rupees three lacs) and P.R bond in the like amount to the satisfaction of the learned trial court.

12. The above findings are tentative in nature which shall not prejudice the case of either party during the course of trial. SA/M-213/Sindh Bail granted.