2017 PLP 1125 (MLD)

ANWAR HUSSAIN, J.

Through this Application, the Applicant seeks post arrest bail, as her Bail Application has been dismissed by the learned Additional Sessions Judge-VII, Larkana, vide Order dated 26.2.2016, in Crime No.05/2012, Under Sections 302, 324, 109, 120-B, 34, 504, P.P.C., of P.S. Civil Line, Larkana. The brief facts of the prosecution case are that on 16.01.2012, the Complainant Imdad Ali Umrani, lodged the said FIR, stating therein that he along with his brother viz. Mashooq Ali, Imtiaz Ali and cousin viz. Arif Ali, were in judicial custody in Crime No.07/2010, under Section 302, P.P.C, for the alleged murder of Ahsan Umrani, the nephew of Habibullah Umrani, who was also in judicial custody in Crime No.19/2011, under section 324, P.P.C., and Crime No.09/ 2011 under section 324, P.P.C. of P.S. Areeja and Abdul Ghafoor, Karim Bux, Ahmed and Rehmatullah, were threatening Complainant for withdrawal of the case, otherwise they will be killed inside the jail. On 16.1.2012, the Complainant with the said persons and Habibullah Umrani, were taken from the Central Prison, Larkana to the Sessions Court, Larkana; produced in the Court of 7th Additional Sessions Judge, Larkana, in Police Custody; after attending the hearing they were taken out from the Court's Room; when they reached at the Outer Gate, where Ahmed and Mst. Sakina (Applicant), met and talked with Habibullah; thereafter the Complainant and all of them were taken to the Prisoner's Hall; when they all were sitting inside the hall, accused Habibullah, took out pistol from the fold of his shalwar and fired with intention to kill Complainant's brother viz. Mashooq Ali, which hit him and he fell down on the ground and accused repeated fire, which hit complainant's cousin viz. Arif Ali, who also fell down and the fire also hit to prisoner viz. Darban Ali. The Police entered therein; recovered Pistol from the Accused and the Complainant went to Mashooq Ali, who sustained firearm injuries on his head and left hand, while Arif Ali, sustained injury on the right side belly and prisoner Darban Ali, sustained firearm injury on his left leg, who were shifted to the casualty with the assistance of Police and Complainant's brother Mashooq Ali expired. The complainant reported that said Ahmed and Mst. Sakina, while meeting with accused Habibullah, in Court gave him Pistol and on the abetment and planning of accused Abdul Ghafoor, Karim Bux and Rehmatullah the accused Habibullah Umrani, on account of said enmity, fired Pistol's shots upon Complainant's brother viz. Mashooq Ali, who was murdered and Complainant's cousin viz. Arif and prisoner Darban Ali Jatoi, received injuries. After hearing the Learned Counsel for the Applicant, learned D.D.P.P., and also Counsel for Complainant, who have opposed the grant of bail to Applicant and going through the record, I have observed as follows:-- (i) That admittedly there exists old murderous enmity between the Parties; (ii) That no overt act of making fire upon deceased has been assigned to the Applicant rather the only allegation against her is that she and co-accused Ahmed met Principal Accused Habibullah in the compound of Sessions Court and provided him pistol, from which, murder has been committed by Principal Accused inside the Prisoner's Hall, where Accused, Complainant, Deceased and Injured were kept under custody; (iii) That as per contents of the FIR neither the Complainant nor any one has seen the Applicant and co-accused Ahmed, while giving Pistol to Principal Accused viz. Habibullah; however it is the only word and claim of the Complainant that Applicant and co-accused provided pistol to Principal Accused; (iv) That there is bare allegation of providing Pistol to Principal Accused against two accused including Applicant and there is no specification that it was the Applicant or the co-accused Ahmed, who provided Pistol to Principal Accused, therefore, it is yet to be determined during trial that who gave pistol to Principal Accused viz. Habibullah; (v) That so far as absconsion of the Applicant is concerned it is well settled law that absconsion would not come in the way of grant of bail, if otherwise the case is made out for grant of bail. Reference is made to the case of Mitho Pitafi v. The State (2009 SCMR 299) Malik Mukhtiar Ahmed Awan v. The State (1991 SCMR 322). In view of the above circumstances, the Applicant has been able to make out a case for grant of bail and in such circumstances accused should not be deprived of benefit of bail. Reference is made to the case of Tariq Bashir v. The State (PLD 1995 SC 34), case of Amanullah Shah v. The State (PLD 1996 SC 241), and case of Nisar Ahmed v. The State (2014 SCMR 27). Accordingly, the instant Bail Application stands allowed and the Applicant is directed to be released on bail on furnishing solvent surety in the sum of Rs.300,000/- (three hundred thousand rupees) and P.R. bond in the like amount to the satisfaction of the learned Trial Court. The observations made hereinabove are tentative in nature and would not influence case of either party at trial. SL/S-60/Sindh Bail allowed.