ORDER SHEET

IN THE HIGH COURT OF SINDH, BENCH AT SUKKUR

Crl. Bail Appln. No. S – 474 of 2014

DATE ORDER WITH SIGNATURE OF JUDGE

For hearing of bail application

(Notice issued)

03.09.2018

Mr. Nazir Ahmed Junejo, Advocate for the applicant

Mr. Afzal Hussain Talpur, APG for State

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Through instant bail application, the applicants Kamran and Hidayat Ali have sought pre-arrest bail in Crime No.73/2014 registered at Police Station, Faiz Ganj for offences punishable under Sections 302, 114, 147, 148, 149 PPC. During pendency of this bail application, one of the applicants Hidayat Ali died due to his natural death.

2. As per FIR registered on 25.5.2014 by one Allah Bachayo Baladi regarding the murder of his brother Imam Bux, alleging therein that there was dispute going on in between the complainant and the accused party over the sewerage water, as such accused Hidayat Ali and others had issued threats of murder to Imam Bux. On the day of incident, complainant along with his brother Imam Bux left the house, when at 4:00 p.m they were confronted on the way by accused Imran with lathi, Kamran, Shah Muhammad, Hidayat Ali, having pistols, Ashique Hussain with hatchet and two unknown persons with pistols. Out of them, accused Hidayat Ali instigated the other accused, as such accused Imran caused lathi blow upon the head of Imam Bux, on receiving such blow raised cries and collapsed on the ground, while remaining accused persons pointed their weapons and restrained the complainant party not to come near them. The complainant party raised cries, which attracted P.Ws Sono, Faryad and other co-villagers who came running there, thereafter, the accused persons escaped away. The injured was brought at hospital for treatment and such FIR under Section etc. PPC was registered, whereas, the injuried during treatment succumbed to the injuries and died, hence the Section 302 PPC was added.

Learned counsel for the applicant contends that the applicant has falsely implicated in this case due to enmity admitted in the FIR over the sewerage water and no specific role has been assigned to the applicant during the incident, whereas as per contents of the FIR he along with co-accused persons was present at the place of incident and he has not actively participated in the incident, whereas, the specific role of causing injury is attributed to the co-accused Hidayat Ali. Learned counsel submits that so far the role of mere presence is attributed to the present applicant, therefore, he is entitled for the concession of bail, therefore, interim pre-arrest bail granted to the applicant Kamran may be confirmed. On the other hand, learned APG appearing for the State opposed the confirmation of interim pre-arrest bail to the present applicant/accused on the ground that he had facilitated the co-accused and was present at the place of incident.

I have heard the learned counsel for the applicant, learned APG for the State and have gone through the record. Admittedly, there was dispute between the complainant and the accused party over the sewerage water, whereas, the role of mere presence at the place of incident is attributed to the present applicant, and he has not actively participated in the commission of the offence, whereas, it has been held by the superior Courts that where no role is attributed to accused and it is mere presence then the case becomes one of further inquiry as the vicarious liability and the common intention can only be determined at the time of trial. The same ratio has been laid down in the case of Mohammad Irfan v. The State and others (2014 SCMR 1347). Since no specific act or any injury or instigation has been attributed to the applicants, therefore, in such circumstances, his vicarious liability and whether he shared common intention or not can only be decided at the stage of trial after recording evidence, hence at present the applicant has been able to make out his case within the ambit of further inquiry. The case has been challaned and the applicant is attending regularly. In view of the above circumstances, the interim pre-arrest bail granted to the applicant No.1 Kamran Baladi on 15.08.2014 is hereby confirmed on same terms and conditions. The applicant/accused is directed to attend the trial Court regularly, if the applicant fails to appear before the trial Court, the trial Court would be at liberty to take action against the applicant and his surety in accordance with law. The observations made in this order are tentative in nature and will not affect the case of either party at the trial.

Judge

ARBROHI