ORDER SHEET

IN THE HIGH COURT OF SINDH, BENCH AT SUKKUR

Cr. Bail Application No. S – 92 of 2019

Date                                        Order with Signature of Hon’ble Judge

For hearing of bail application

04.03.2019

                        Mr. Ali Ahmed Khan Advocate for the Applicant

                        Mr. Abdul Rehman Kolachi, DPG for the State

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 Irshad Ali Shah, J;-  It is alleged that the applicant with rest of the culprits after having formed an unlawful assembly and in prosecution of their common object committed murder of Ghulam Jaffer by causing him fire shot injuries, for that he was booked in the present case.

2.                     On having been refused post-arrest bail by learned 1st Additional Sessions Judge Sukkur, the applicant now has sought for the same from this Court by way of instant application u/s 497 Cr.P.C.

3.                     It is contended by learned counsel for the applicant that the applicant being innocent has been involved in this case falsely by the complainant party in order to satisfy their old enmity with him; the co-accused Fateh Muhammad alias Fateh Shero alias Fatoo has already been admitted to bail by learned trial Court and the role attributed to the applicant in commission of incident is only to the extent of instigation. By contending so, he sought for grant of bail to the applicants on point of further inquiry.

4.                     Learned DPG for the State has recorded no objection to grant of bail to the applicant.

5.                     I have considered the above arguments and perused the record.

6.                     Admittedly, the role attributed to the applicant in the commission of incident is only to the extent of instigation, as such, the participation of the applicant in commission of incident on the point of vicariously liability obviously is calling for further inquiry. In that situation, learned trial Court ought not to have refused bail to the applicant on the point of absconsion alone.

7.                     In case of Mitho Pitafi v. The State (2009 SCMR 299), the Honourable Apex Court in similar like case has admitted the accused to bail by making the following observation;

“----S. 497---Penal Code (XLV of 1860), Ss.302/324---Constitution of Pakistan (1973), Art.185(3)---Bail, grant of---Co-accused was released on bail by the Trial Court, but the concession of bail was declined to the accused petitioner on the ground that he was fugitive from law---High Court as well as the Trial Court had rejected the bail of petitioner on account of his absconsion and not on merits---Validity---Bail could be granted, if accused had good case for bail on merits and mere his absconsion would not come in the way while granting him bail---High Court had not appreciated the facts and circumstances of the case in its true perspective while declining bail to the petitioner---Petition was converted into appeal and same was allowed---Impugned order passed by the High Court was set aside and the petitioner was directed to be released on bail, in circumstances.”

 

8.                     In view of above, the applicants is admitted to bail subject to his furnishing surety in the sum of Rs.50,000/- (Fifty thousand) and PR bond in the like amount to the satisfaction of learned trial Court.

Judge

 

ARBROHI