2016 PLP 886 (MLD)

AFTAB AHMED GORAR, J.

Through this criminal bail application, applicant Nazar Muhammad seeks post arrest bail in Crime No.04/2015 of Police Station Jhol, District Sanghar for the offence under sections 302, 324, 504, 34 P.P.C. Earlier bail plea of the applicant has been turned down by the learned 15t Additional Sessions Judge, Sanghar vide order dated 13,07.2015.

2. Allegation against the applicant is that on 13.01.2015 he and co-accused came at the place of incident i.e. in front of Indus Laboratory situated at Jhol town on two motorcycles, where co-accused Qurban, Mumtaz and Ismail Kandhani made straight fires from the pistols upon the complainant party, which hit Abdul Khalique, Abdul Ghani and Dilbar; resultantly Abdul Khalique and Abdul Ghani brother and uncle of the complainant expired.

3. Mr. Ghulamullah Chang, learned counsel for the applicant mainly contended that the applicant has been implicated in the instant crime due to enmity on matrimonial dispute by the complainant party; FIR is delayed for about 24-1/2 hours without plausible explanation; mere alleged presence of the applicant is shown at the place of incident; applicant was empty handed and no role is attributed to him for causing fire shot injuries. He further contended that no question of common intention on the part of the applicant does arise; if the applicant had common intention to commit the Murder of deceased, he should have carried with him any weapon to commit murder, this fact is also admitted in the FIR that the applicant was empty handed. He pointed out that the applicant is neither desperate, dangerous nor hardened criminal or previously convict but he is involved due to enmity, therefore, in such circumstances, false implication of the accused cannot be ruled out. In support of such contention, he has stated that vicarious liability of the applicant can only be determined during the trial and since the applicant has not been alleged attributed in active role in the FIR by the complainant, guilt of the applicant would require further inquiry as contemplated under section 497(1), Cr.P.C. In support of his arguments, he has relied upon the cases reported in 2012 SCMR 662, 2014 SCMR 27 and 1347. He has lastly requested for release of applicant on bail.

4. Conversely, the counsel for the complainant has contended that section 34, P.P.C. is very much attracted in the present case as the presence of the applicant is established from the contents of FIR, therefore, prima facie, case exists against the applicant, who is booked in a case falling under section 302, P.P.C., which carries capital punishment. According to him, the applicant is not entitled to the concession of bail in of his presence at the spot.

5. Learned D.P.G. for the State has supported the contentions adduced by the counsel for the complainant and contended that the applicant does not deserve for concession of bail as he is involved in the case of double murder, his presence at the spot is sufficient for his intention to commit murder.

6. I have considered the contentions raised by the learned counsel for the applicant, complainant and learned D.P.G. and have gone through the material available on the record as well as the case laws relied by the learned counsel for the applicant.

7. It is an admitted fact that the name of the applicant appears in the FIR, who is booked in an offence falling within the ambit of prohibitory clause under section 497(1), Cr.P.C. It is also well settled principle of law that the person who is involved in the offence falling under prohibitory clause, cannot be granted bail, if there are sufficient grounds to establish his connection with the commission of the offence. However, in appropriate cases, when the role attributed against the accused calls for further inquiry into his guilt, he can be granted bail on the ground of further inquiry. In the present case, though, the applicant has been shown to be present at the spot, but, he has not been assigned any active role in the commission of crime. No any injury upon the deceased is attributed against him and his alleged unarmed presence at the scene would reflect, prima facie, that his sharing vicarious liability with the main accused is a question, which can be determined by the trial Court during the trial. Moreover, it is well settled that bail cannot be withheld as a punishment and there is no legal or moral compulsion to keep the peoples in Jail merely on the allegation that they are involved in the offences punishable with death or imprisonment for life unless reasonable grounds appear to exist to disclose their complicity. The ultimate conviction and incarceration of a guilty person can repair the wrong caused by the mistaken relief of bail granted to him but no satisfactory reparation can be offered to an innocent person for his unjustified incarceration at any stage of the case albeit his acquittal in the long run. The applicant is behind the bars since the date of his arrest i.e. 14-01-2015,but in the present case, the reasonable grounds do not exist to believe that the applicant has committed an offence punishable with death, imprisonment for life or imprisonment for 10 years. 8 In view of above facts and circumstances, I am o the opinion that the applicant has been able to make out the case for concession of bail. Accordingly, the applicant is granted bail, subject to his furnishing a solvent surety in the sum of Rs.300,000/- (Three Lac) and PR bond in the like amount, to the satisfaction of trial Court. Above are the reasons of my short order dated 11.12.2015.

9. The observations made hereinabove are tentative in nature and shall not prejudice the case of either party before the trial Court. Criminal bail application stands disposed of. RR/N-4/Sindh Bail granted.