2011 SCMR 902 (PLP)

SARMAD JALAL OSMANY, J.

Both these petitions impugn the order dated 30-1-2008 passed by the learned Sindh High Court, whereby the petitioners were refused bail before arrest.

2. Briefly stated the facts of the matter as per the F.I.R. are that the complainant Sikandar Ali was present in the house of his son-in-law Muhammad Adnan (Main accused) and daughter deceased Mst. Sajida, on the day of incident along with his brother Shabbir Ahmed and nephew Waqar Ahmed in order to settle some difference which had arisen between the couple regarding purchase of a bungalow. Adnan Ahmed had called his cousins Mazhar Hussain and Manzoor Hussain for assistance who are the petitioners before us. According to the complainant the negotiations did not bear any fruit mainly because of the pressure mounted by the petitioners on Adnan Ahmed. At about 3-00 a.m. when the complainant, Shabbir and Waqar were sitting in the drawing room, they heard cries of his daughter deceased Sajida in an adjoining room. They saw that the petitioners along with main accused Adnan Ahmed were present in the room with Sajida when the latter had kept a Revolver on her chest and fired, at which she cried out and fell down. Then all the three threatened the complainant with their weapons and made good their escape. Adnan Ahmed had also thrown his weapon on the ground. Sajida had expired upon arriving at the hospital.

3. In support of the petition Mr. Mazhar Ali B. Chohan, learned. Advocate-on-Record has firstly submitted that the main accused Adnan Ahmed has been granted bail by the learned Sindh High Court wherein it has been found that they were serious doubts at his presence at the scene of the crime. That so far no expert report is available as to the finger prints which were found on the revolver recovered from the scene and there was a delay in lodging of the F.I.R. of almost of 8 hours which rendered the case one of further inquiry.

4. Learned Advocate-on-Record's next contention is that although per the F.I.R. the Complainant Party had arrived at Adnan Ahmed's bungalow at 9-00 p.m. and the negotiations were fruitless, there is no explanation as to what they were doing there up to 3-00 a.m. in the morning. Finally he has submitted that the only allegation against the petitioners are being present at the scene of the crime and hence they c4n not be saddled with vicarious liability at the bail stage.

5. On the other hand, Mr. M.A. Qazi, learned Advocate Supreme Court has fully supported the impugned order on the ground that according to the F.I.R. and the 161 and 164, Cr.P.C. statements of the P.Ws., both the petitioners played an active role in assisting the main accused Adnan Ahmed to escape and hence their vicarious liability in the crime is evident. Secondly he has submitted that at the bail stage only a preliminary inquiry has to be made after which a conclusion reached as to whether or not the accused can be connected to the crime in question which exercise has been done by the learned High Court.

6. Mr. Shahadat Awan, Learned Prosecutor-General. Sindh, has supported the contention of Mr., Mazhar Ali B. Chohan, and stated that the presence of the petitioners cannot be established at the scene of the crime and in these circumstances the police had released petitioner Manzoor Hussain and placed him in Column 2 in the challan filed before the learned trial Court.

7. We have heard Mr. Mazhar Ali B. Chohan, learned Advocate- on-Record, Mr. M. Ashraf Kazi, Senior Advocate Supreme Court and Mr. Shahadat Awan, learned Prosecutor-General. In our opinion, the F.I.R. itself does not explain the presence of the two petitioners in the room where the crime was allegedly committed by main accused Adnan Ahmed. In this regard, it would be seen that the complainant party is stated to be sitting along with the accused party where negotiations were going on till 3-00 a.m. in the morning in the drawing room. Then apparently all the three accused went into the room occupied by deceased Sajida, where they saw the petitioners with their weapons and accused Adnan Ahmed pointing his Revolver at the chest of Sajida and subsequently firing it which resulted in her death. Further more the 164, Cr.P.C. statements recorded by the prosecution witnesses also do not support this sequence of events. It would be seen that bail cannot be refused on the basis of vicarious liability, unless it is shown through positive evidence that indeed co-accused played a role in the crime in question. This does not appear to be the case in the present matter. Finally, in the same set of circumstances when the main accused had been granted bail, we see no reason to deny bail to the petitioners/ co-accused.

8. These are the reasons for the short order passed earlier whereby these petitions were converted into appeals and allowed. N.H.Q./M-4/SC Bail allowed.