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