ORDER-SHEET

IN THE HIGH COURT OF SINDH, CIRCUIT COURT LARKANA  

Crl. Bail Appln. No. S- 525 of 2017.

Date of hearing

Order with signature of Judge

26.03.2018.

1.       For orders on office objections.

2.       For hearing of bail application.

          Mr. Ali Anwar Saahar, Advocate for applicant.

          Mr. Mazhar Ali Mangan, Advocate for complainant.

          Mr. Sharafuddin Kanhar, A.P.G.

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AMJAD ALI SAHITO, J.- Through instant application, applicant Hussain son of Yaqoob Rind seeks his admission to post-arrest bail in Crime No.65/2014, registered with Police Station Mehar (District Dadu), for offences punishable under Sections 302, 147, 148, 149 & 504 P.P.C.

2.       Precise allegations as narrated in the F.I.R are that, on 23.3.2014 complainant Mst.Shahzadi Rind lodged report with P.S Mehar, that our dispute over agricultural land of my brohter Abdul Sattar is going-on with party of Khadim Hussain son of Muhammad Yaqoob Rind, resident of at-present Baital, Taluka Mehar, due to which, party of Khadim Hussain Rind used to threaten us that one day they would kill us. Yesterday, i.e. 22.3.2014, I, my brohter Abdul Sattar son of Gul Muhammad Hassan Rind, aged about 50/51 years, and my nephews, namely Hubdar son of Mumtaz Hussain, and 2. Dilbar son of Abdul Sattar Rind were busy in harvesting the “Mutter” crop in our agricultural land situated adjacent to our houses, when at about 0900 hours accused persons, everyone, 1. Bashir armed with SBBL gun, 2. Rafique with kalashnikov, 3. Shoukat with repeater gun, 4. Yaqoob with rifle, 5. Soomar with SBBL gun, all five sons of Khadim Rind, 6.Yaseen son of Akbar with DBBL gun,   7. Hussain son of Yaqoob with pistol, 8. Naseer son of Hussain Bux with gun all by caste Rind, resident of village Baital, Taluka Mehar, 9. Mehboob with rifle, 10. Hakim with repeater, both sons of Rahib Solangi, resident of village Rahab Machhi, Taluka Mehar, came there, out of whom accused Bashir hurled abuse and said that this land belongs to them, to which my brohter Abdul Sattar asked him not to abuse us, whereupon accused Bashir fired with his gun straight upon my brohter Abdul Sattar with intention to kill him, who fell down by raising cry,  while the remaining accused persons by giving “hakal” threatened us not to go near them, hence due to fear of weapons we remained silent and did not proceed ahead and then accused persons chanting slogans went away. After departure of accused, we found my brohter having a firearm injury on his left side nipple on the chest, which had crossed through his body on right side of back and he had died then and there. After arranging conveyance, I and my sister-in-law Mst.Waziran brought the dead body at Taluka Hospital, Mehar and gave such information to Mehar police, who came and got conducted postmortem of dead body, and then we took dead body to village and after its burial and funeral, now I have appeared at police station and report that all the above-named accused persons with their pre-concert being armed with weapons came and accused Bashir Rind by making fire with his gun due to dispute over agricultural land committed murder of my brother. I am complainant, investigation may be made.”

3.       Learned counsel for the applicant mainly contended that, the F.I.R is delayed for more than a day and that no overt act has been assigned to the applicant but his mere presence has been shown on spot at the time of alleged incident. Per learned counsel the question of sharing common intention and vicarious liability of the applicant would be determined at the time of trial and that it is well settled principle of that the absconsion of the accused would not come in his way of grant of bail, if otherwise he is entitled for concession of bail. He lastly, prayed for grant of bail in favour of the applicant.

4.       On other hand, learned Advocate for complainant opposed grant of bail in favor of the applicant on the grounds that the applicant has been nominated in the F.I.R with his name and parentage and that he has   remained fugitive from law for more than a year, therefore, he is not entitled for concession of bail.

5.       Learned A.P.G. appearing for the State while adopting arguments advanced by learned Advocate for complainant also opposed grant of bail to applicant.

6.       It is evident from the record, that mere presence of the applicant/ accused has been recorded in the F.I.R without attributing any injury to the deceased, although he was armed with weapon but he has not used the same. The complainant of the case has thrown a wide net to involve all male members of the family of the applicant/accused in the commission of the crime. So as to what role has been performed by the applicant in this incident is yet to be ascertained in the trial of the case. The question of vicarious liability and sharing of common intention in the incident cannot be decided at bail stage as the same requires determination at trial. The prosecution witnesses while making their statements in terms of Section 161 Cr.P.C have also narrated mere presence of the applicant at the spot. In this respect, reliance can be placed from cases reported as Muhammad Sadiq and another v. The State (1996 SCMR 1654), and Abdul Rehman v. Javed and 2 others (2002 SCMR 1415). So for as, absconsion of the applicant is concerned, it is well settled law by now that mere absconsion would not come in way of grant of bail, if otherwise a case for bail is made out.  In this regard, the reliance can be placed on case of Qamar alias Mitho v. The State and others (PLD 2012 Supreme Court 222), Ikram-ul-Haq v. Raja Naveed Sabir and others (2012 SCMR 1273) and Mitho Pitafi versus The State (2009 SCMR 299), wherein it has held by the Honourable Supreme Court of Pakistan that bail could be granted, if the accused has good case for bail on merits and mere his absconsion would not come in the way while granting him bail.

          In case of Ikram-ul-Haq v. Raja Naveed Sabir and others cited supra, the Hon’ble Supreme Court of Pakistan has held as under:

3.-----“We have, however, remained unable to subscribe to this submission of the learned counsel for the petitioner because the law is by now settled that in a case calling for further inquiry into the guilt of an accused person, bail is to be allowed to him as a matter of right and not by way of grace or concession. Bail is sometimes refused to an accused person on account of his absconsion but such refusal of bail proceeds primarily upon a question of propriety. It goes without saying that whenever a question of propriety is confronted with a question of right the latter must prevail.”

7.       For what has been discussed above and taking guidance from the case law, referred above, the case of applicant/accused becomes one of further enquiry as covered by Sub Section (2) of Section 497 Cr.P.C. Accordingly, the instant application is allowed and applicant/accused  namely Hussain son of Yaqoob Rind is admitted to bail subject to his furnishing solvent surety in the sum of Rs.500,000/- (Five hundred thousand rupees) with P.R bond in the like amount to the satisfaction of learned trial Court.

                                                                             J U D G E

Ansari/*.