2020 P Cr (PLP)

KHADIM HUSSAIN TUNIO, J.

Through captioned bail applications, the applicants seeks bail in case Crime No. 127 of 2018 for the offences punishable under sections 302, 324, 427, 147, 148 and 149, P.P.C., registered with Police Station Docks, Karachi.

2. Precisely, facts of the prosecution case are that on 18.03.2018, applicants, allegedly, while on a speed boat approached the complainant party's boat and started firing upon them. Consequentially, one Usman lost his life and his brother received several GSWs and was injured.

3. Learned counsel for the applicant Nawaz Ali contended that the applicant is innocent and has been falsely implicated in the present case due to mala fide; that there is a dispute between the parties and the complainant with mala fide and ulterior motives lodged the instant FIR that there are no eye-witnesses of the said incident; that there is a delay of one day in the lodging of FIR which has not been explained by the complainant; that the applicant is a social worker in the area; that the wife of the applicant is Director Fisheries and complainant party has falsely managed this case just to harass them; that the complainant even resides in the same neighborhood as the applicant, however in the FIR only disclosed the name Nawaz instead of the full name; that co-accused namely Abu-Bakr and applicant Abdul Aziz's names transpire in column-II and they had already been released by the police, although later joined back by the Magistrate, and the case of the present applicant is on the same footing. He therefore prays for the grant of bail to the applicant.

4. Learned counsel for complainant and learned D.P.G vehemently opposed the bail applications of the applicants while arguing that an innocent man had lost his life during the commission of offence. Learned counsel for the complainant has placed his reliance on PLD 1987 Lahore 456, 2014 PCr.LJ 650, 2015 PCr.LJ 860, SBLR 2014 Sindh 1272, 2011 MLD 93, 2002 MLD 83, 2007 SCMR 1607, 2008 SCMR 678, 2015 SCMR 1394, 2009 SCMR 725 and 2000 SCMR 1405.

5. Arguments of the learned counsel for the parties and learned D.P.G were heard and record was perused.

6. A tentative assessment of the FIR unveils several important aspects of the case which I shall attend to first. It is a matter of record that the alleged incident took place on 18.03.2018 whereas the FIR was lodged, with a delay, on the next day i.e. 19.03.2018. When asked about the delay in the lodging of FIR, the prosecution could not furnish the Court with any solid reasoning. The allegations in the present case are general i.e. that of causing firearm injuries to the deceased collectively. Specific roles have not been attributed to either the applicants or to any of the other accused. In such a case, it cannot be said as to whose bullet was the fatal blow to the deceased's well-being. The delay creates serious doubts in the prosecution case and suggests that the story as narrated may be concocted just to rope in the applicants to satisfy the enmity that has been claimed by the applicants. In a similar case, where the accused had not been assigned a specific role, titled Ghulam Mujtaba Qadri v. The State and others (2012 SCMR 662), the Hon'ble apex Court was pleased to grant bail to them. Moreover, as per the applicant Nawaz's counsel, the complainant party is his neighbor and well known to him, however they are inimical towards each other and the applicant's counsel claimed that he is being falsely implicated due to ulterior motives. The applicant Nawaz Ali brought on record a petition filed by his wife as the Director Fisheries against the Docks Police for harassment and the counsel for applicant Nawaz has time and again established the mala fide on the part of the police. As far as the case of the applicant Nawaz is concerned, it is settled law that establishing a mala fide is one of the pre-requisites to grant of bail.

7. As far as the question of vicarious liability is concerned, same shall be determined at trial after both parties adduce evidence in this respect with respect to the roles played by the accused. Reliance in this respect is placed on the case law titled Manzoor Hussain and another v. The State (2011 SCMR 902). The investigation officer could not find any incriminating evidence against the applicants, however he formed the opinion, in remarks column, that the applicant Nawaz was a habitual offender and he misused the property of the Fisheries Department, therefore is guilty of the offence. Such an observation is of no worth or benefit for the prosecution case as it is irrelevant. The charge that the prosecution has to establish against the applicants is of causing injuries and murder and not the misuse of departmental vehicles. It is also a matter of record that co-accused Abu Bakr and applicant Abdul Aziz had already been released by the police after completion of investigation and their names were placed in column-II, however they were rejoined by the learned Magistrate. The case of the applicant Nawaz is also on similar footing as to that of the co-accused Abu-Bakr and Abdul Aziz. Rule of consistency, therefore, is fully attracted in the present case. Not only this, if the charge against the applicant Abdul Aziz is not proven at trial, refusing him bail at this stage when even the offence he has committed is unclear would be refusing him his liberty. As is evident from the record, investigation had finished and the physical custody of the applicants is no longer required. No purpose would be served from keeping him behind the bars as a premeditated punishment. Reliance in this respect can be placed on the case titled Ehsan Ullah v. The State (2012 SCMR 1137).

8. Per Curiam, there are many doubts in the prosecution case and the benefit of the same shall go to the applicant as a rule and not a favour. In this respect, reference is made to the landmark order of the Hon'ble apex Court in case titled Awal Khan and 7 others v. The State through AG-Khyber Pakhtunkhwa and another (2017 SCMR 538).

9. The case law referred to by the learned counsel for complainant is not applicable in the present case as the same is distinguishable on facts and circumstances from that in these bail applications.

10. Ex-consequentia, this Court while following the dictum laid down in the above mentioned case and for the circumstances highlighted above, being of the opinion that the applicants had made out their case for grant of bail, confirmed the pre-arrest bail, already granted to the applicant Nawaz Ali whereas granted post-arrest bail to the applicant Abdul Aziz, vide short order dated 17.06.2019. These are the reasons for the same. ADN/N-38/Sindh Bail granted.