2009 PLP 1069 (YLR)

DR. RANA MUHAMMAD SHAMIM, J.--Through this bail application the impugned order dated 17-7-2008 passed by learned trial Court is challenged whereby the bail to applicants was refused. Brief facts of the prosecution case are that complainant Abdul Nabi lodged report with Police Station Johi on 25-5-2008 at 1600 hours, stating therein that about 13/14 years back one Mirzo Khan Lund expired in an accident. Mumtaz alias Rano, Mian Bux and others suspected that. Mirzo has been murdered by Muhammad Lund and others and in that case accused were acquitted by the trial Court and they filed an application before the Director Human Rights against said Muhammad Lund and brother of comp lainant Raees Ghulam Nabi Lund, which was fixed on 24-5-2008. On 24-5-2008, complainant's brother Raees Ghulam Nabi Lund boarded on motorcycle while complainant and his nephew Noor Nabi boarded on another motorcycle left Johi for Dadu. At about 8-15 p.m. when they reached near leading road from Dadu to Johi, near Oil Company Culvert, they found a tractor parked on the northern side in starting condition, on which accused Mumtaz alias Rano and the present applicants were sitting. As soon as the motorcycle of Raees Ghulam Nabi reached near the tractor; the accused Mumtaz alias Rano who was sitting on the driving seat, climbed the tractor over the complainant's brother Raees Ghulam Nabi and Muhammad with intention to commit their murder due to previous enmity who fell down. It is further alleged that accused Mumtaz reversed the tractor and again climbed over them and then accused fled away. Complainant found his brother Raees Ghulam Nabi and Muhammad in injured condition and took both the injured in serious condition to Taluka Hospital, Johi gave such information to police and received letter for treatment. The injured were then shifted to Taluka Hospital Dadu and in the way complainant's brother Raees Ghulam Nabi Khan succumbed to injuries. Thereafter complainant lodged such report at P.S. Johi. Learned counsel for applicants contends that no specific role is attributed to the applicants for commission of the alleged offence; that there is a delay of 20 hours in lodging of F.I.R. and such considerable delay has not been explained by the complainant; that applicants have been falsely implicates in this case due to admitted enmity with the complainant party as a case against the complainant party was also registered by the applicant party; that the alleged fatal injury caused to the deceased Ghulam Nabi and injured Muhammad Khan admittedly was not attributed to the applicants in the F.I.R. as well as by eye-witnesses in their statements recorded under section 161, Cr.P.C.; that provision of section 302 has been misapplied in respect of the applicants, however, if the prosecution case is taken as it is, at the best, the provision of sec tion 320, P.P.C. is hardly applicable. He further submits that there are no reasonable grounds to believe that the applicants have committed a non-bailable offence as alleged but there exist sufficient grounds for further inquiry into the guilt of the applicants/ accused, entitling them for grant of bail as contemplated under subsection (2) of the section 497, Cr.P.C. While saying so, he has relied upon the cases reported in 2002 PCr.LJ 707, 2007 PCr.LJ 1848, 2007 MLD 340 and 1999 SCMR 1320. Learned counsel for complainant lukewarmly opposes the grant of bail to the applicants but has not controverted the contentions raised by learned counsel for applicants. He further submits that present applicants came with main accused at the place of incident on a tractor which was driven by accused Mumtaz who hit Ghulam Nabi who subsequently succumbed to injuries. He concedes to this effect that vicarious liability and common intention for the commission of offence would be determined at the trial after recording of evidence. Learned State Counsel, in view of the contentions of learned counsel for complainant has not opposed for grant of bail to the applicants as the case of applicants is of further inquiry. I have heard learned counsel for applicants, complainant and State, perused the material available on record and gone through the case-laws. It is an admitted position that the tractor was neither driven by present applicants nor it was in their control. The said tractor was driven and was in the control of main accused Mumtaz who hit to the motorcycle of Ghulam Nabi deceased who subsequently succumbed to injuries. Mere presence at the place of occurrence and in absence of any material could not constitute abetment, conspiracy or common intention unless the same is proved through evidence at the trial. Admittedly no role has been attributed to the applicants causing hit by tractor or injury upon Ghulam Nabi who subsequently succumbed to injuries. In view of the above facts, circumstances and case laws, the case of the applicants is of further inquiry and the bail to the applicants was accordingly granted vide a short order dated 13-10-2008 subject to their furnishing surety in the sum of Rs.200,000 (Rupees two lac) each and P.R. Bonds in the like amount to the satisfaction of learned trial Court. The above are the reasons for the said short order. N.H.Q./M-204/K Bail allowed.