2006 P Cr (PLP)

SYED ZAWWAR HUSSAIN JAFFERY, J.

Applicant Hafiz Muhammad Aslam is facing trial in Session Case No.303 of 2002 in Crime No. 176 of 2002 for an offence punishable under section 302/34, P.P.C. registered at Police Station Tairmuria and trial of the case is pending before the learned IInd Additional Session's Judge, Karachi, Central. The bail plea on behalf of the applicant was filed in the trial Court but the same was dismissed vide order dated 12-10-2004. The applicant/accused being aggrieved and dissatisfied with the impugned order had filed Bail Application before this Court for seeking bail on similar grounds. The brief facts as enumerated in the F.I.R. are, that the complainant, Atta Muhammad on 14-10-2002 was available at 6-30 p.m. in his house, his son, Muhammad Hussain informed him that in front of HouseNo.PL-236, opposite Rashid General Store, Aslam, Akram, Malik Rehman and his son Aslam are beating Bashir Ahmed. Complainant rushed to the place of incident and saw that Aslam, Rehman and his sons caught hold of Bashir Ahmed while Akram having Chhuri in his hand causing Chhuri injuries to his brother, Bashir Ahmed. The complainant raised cries, whereupon the above mentioned accused made their escape good, injured Bashir Ahmed due to injuries fell on the ground.. He was taken to. Abbasi Shaheed Hospital in a taxi but died in the way to the hospital. The F.I.R. was lodged after due investigation was carried out. The charge-sheet was filed in the Court having jurisdiction. The applicant Muhammad Aslam, Muhammad Akram were challaned whereas the other co-accused mentioned in the F.I.R. were let off. Mr. Shafi Muhammadi, learned counsel for the applicant has contended that as per F.I.R. catching hold of deceased was attributed to three persons whereas charge-sheet against two persons having the name as declared by the complainant. It is further contended that there was a sudden fight and the applicant has also sustained injuries at the time of incident and the question of aggression is yet to be determined by the trial Court. It is further urged on behalf of the applicant that infliction of Chhuri injuries is attributed to co-accused, Muhammad Akram and there is cross-version of the alleged incident in counter-shape hearing Session Case No.236 of 2004 under section 324/34, P.P.C. against the complainant party in respect of the same incident. It is further argued that there was no recovery of knife from the possession of the accused at the time of alleged incident. There is no recovery of Chhuri at the time of alleged arrest of the applicant/accused. Mr. M. Shafi Muhammadi, learned counsel for the applicant in support of his arguments has relied upon the case of Shahid v. The State 1994 SCMR 393; Mehmood Akhtar and another v. Haji Nazeer Ahmed and 4 others 1995 SCMR 310 and case of Ali Shah v. The State 2002 PCr.LJ

707. Conversely, Mr. Badar Munir, learned counsel for the complainant has vehemently opposed this application and submits that applicant/accused participated in commission of the offence while catching hold the deceased thereafter Muhammad Akram inflicted knife blows to the deceased. The applicant/accused is vicariously liable for commission of the alleged offence. The complainant has implicated the applicant/accused in the F.I.R. as well as in deposition recorded by the trial Court. The applicant/accused is not entitled for concession of bail. Mr. Sardaruddin Qureshi, learned State Counsel has also opposed the application. I have heard the arguments of the learned counsel for the respective parties, examined the material placed on record and the case-law cited at bar. Admittedly in the F.I.R. as well as in the deposition of the complainant, Atta Muhammad, it is stated that the applicant/accused grappled the deceased whereupon the co-accused, Akram inflicted knife blows. As per allegation contained in the F.I.R. three persons caught hold the deceased whereas Muhammad Akram inflicted knife blows to the deceased but during the course of investigation the other accused who caught hold the deceased have been let off and they have been declared innocent whereas -the applicant/accused has been charge-sheeted. The applicant/accused was arrested on 14-10-2002 and certain injuries were noticed at the time of arrest of applicant/accused. The trial Court framed the charge against the applicant and other co-accused on 28-1-2003 and only two witnesses have been examined. Complainant Atta Muhammad has deposed in the statement that applicant/accused was holding thedeceased. Bashir Ahmed and Akram was causing Chhuri injuries. It will be advantageous to reproduce the observation of the Honourable apex Court in the case of Mehmood Akhtar v. Haji Nazeer Ahmed and 4 others 1995 SCMR 310. "In the connected Criminal Petition No.105 of 1994, Rehmat Hussain, one of the co-accused persons in F.I.R. No.127 dated 17-6-1994, has prayed for bail which was declined by the learned Judge in Chambers for the following reasons:-- "So far as Rehmat Hussain petitioner, is concerned he is not considered entitled to bail for, he is alleged to have caught hold of the deceased before he was given injuries by his co-accused. He is alleged to have facilitated the crime. His application is, therefore, dismissed." The learned counsel for the petitioner (C.P. No.105 of 1994) has relied upon on the case Basharat Hussain v. Ghulam Hussain and others 1978 SCMR 357 wherein this Court refused to interfere with the order of High Court granting bail to accused person in a case who had B held the deceased to facilitate the murder by the co-accused. While refusing leave to appear in the above case, this Court made the following observations:-- "It is quite clear from the F.I.R. that respondent No.1 was alleged to have held the deceased when his son Abdul Qayyum hit the deceased on the head. Respondent No. 1, is therefore, charged with facilitating the murder of the deceased. It has been rightly pointed out by the High Court that this question requires further enquiry and the petitioner was entitled to bail." A similar view was also expressed in case of Shahid v. The State 1994 SCMR

393. The same is reproduced hereinbelow:-- "It was contended by the learned counsel that the petitioner, has been attributed the role of his having caught hold of the deceased when his co-accused was inflicting the dagger blows and similar role was attributed to Munsif their father for having given kicks and fist blows to the deceased. The latter having been extended the concession of bail, on the principle of consistency, petitioner is also entitled to the grant of bail. That in view of the statements of the prosecution witnesses during the investigation it is to be determined whether petitioner facilitated the commission of the offence for application of section 34 makes out a case for further enquiry. " In the light of the above authorities, I have also taken the similar view in the case of Ali Shah v. The State 2002 PCr.LJ

707. In view of the above dicta of Honourable apex Court, the applicant/accused has made out a case for interference, and is entitled for grant of bail. Resultantly the bail is granted to the applicant/accused, subject C to his furnishing the solvent surety in the sum of Rs.2,00,000 (Rupees two lacs only) and P.R. bond in the like amount to the satisfaction of the trial Court. H.B.T./M-280/K Bail granted.