IN THE HIGH COURT OF SINDH BENCH AT SUKKUR
Cr. Bail Application No.S-542
of 2019
Applicants/accused: Ali Dino S/O Ammanullah, Through Mr.Shamsuddin N Kobhar,
Advocate.
Complainant: Ali Raza Through Mr.Shabbir Ali Bozdar, Advocate.
The State: Through Mr. Shafi
Muhammad Mahar, DPG.
Date of hearing: 14-02-2020
O R D E R
Zulfiqar Ali Sangi, J:
Through instant application, applicant/accused Ali Dino, seeks bail after
arrest in FIR No.48/2019, registered at Police Station Khanpur Mahar, under
Section 302, 147, 148 & 149 PPC. Applicant/accused applied for bail before
the Additional Sessions Judge-II, Ghotki, who declined the bail vide order
dated 26.09.2019, hence applicant approached this court for bail.
2. The
Facts of the prosecution case according to FIR bearing Crime No.48/2019, dated
29.07.2019 lodged by Ali Raza S/o Ali Muhammad Mahar at PS Khanpur Mahar are
that the Amanullah is the uncle of complainant prior to this dispute over land
enmity is going on between the parties on 21.11.2018 the son of complainant
Ghulam Muhammad was murdered by Amanullah and others such case was registered
as Crime No.96/2018 offence under Section 302, 147, 148 & 149 PPC at PS
Khanpur Mahar against Amanullah and his sons the case is pending before Sessions
Court on that Amanullah gave threats to complainant party they withdraw the
case from them, if not they will murder them, on 28.07.2019 the complainant
along with his father Ali Muhammad and brothers Muhammad Arif and Talib Hussain
were closed the outer door and were sleeping, on 29.07.2019 in the night at
about 1:00 a.m, the complainant heard knock of the door, the complaint party
woke-up the brother of complainant Ali Muhammad opened the door and went out
from house the complainant and his brother Muhammad Arif and Talib Hussain went
behind their brother, on the light of electric bulbs they saw and identified
near Bab-e-Rehmat Mosque accused Amanullah Mahar S/o Soomro, Muhammad Ali,
Ahmed Ali were armed with guns, Ali Dino armed with pistol all three sons of
Amanullah Mahar R/o Khanpur Mahar and two unidentified accused both were armed
with lathies standing accused Ahmed Ali Mahar gave hakal and asked that they
were not withdraw from the case today they will murder Ali Muhammad, the
complainant party gave wasta of “Allah and Holy Prophet Peace Be Upon Him” and
they in their pressure accused Ahmed Ali fired from gun for attempt to commit
murder of Ali Muhammad which hit him on left side of abdomen, accused Amanullah
fired from his gun to Ali Muhammad which hit him on left thigh, accused
Muhammad Ali fired from his gun and Ali Muhammad which hit him on left arm Ali
Muhammad raised cries and fell down thereafter all the accused ran away towards
southern side the complainant party due to fear of weapons did not chase them,
thereafter, the complainant and their brothers went over the dead body of their
brother and saw one firearm injury on left side of stomach and exist from side
of stomach through and through one firearm injury on left thigh and exist from under
side one fire arm injury on right arm and blood was oozing and was dead, the
complainant arranged the transport and with the help of his PWs brought the
dead body at Taluka Hospital Khanpur Mahar for post mortem and after post
mortem the dead body brought at his village, and after burial the dead body the
complainant came at Police Station and registered the FIR that above named
accused with common intention armed with weapons and lathies accused Ahmed Ali,
Amanullah, Muhammad Ali and others fired from guns at Muhammad Ali and murdered
him, the unidentified accused if came again before them they will identify them.
3. Mr.
Shamsuddin Kobhar, learned
counsel for the applicant/accused contended that applicant is innocent and has
been involved by the complainant due to enmity; that there is delay for about
16.30 hours in registration of FIR the same has not been explained; that
allegation against the applicant was that he was only present at the place
incident duly armed with pistol and the same has not been used by applicant;
that case has been challaned and the applicant is no more required for
investigation; lastly he prayed for grant of bail.
4. Mr. Shafi Muhammad Mahar, learned
Deputy Prosecutor General after hearing the contentions of counsel for the
applicant raised no objection for grant of bail.
5. Mr. Shabbir Ali Bozdar learned counsel for
complainant contended that applicant was very much available at the place of
incident with their respective weapon; that he facilitated the main accused
those are his father and brothers for committing a heinous offence of murder;
that after the arrest of brothers of applicant
in case of murder of Ghulam Muhammad his father issued threats to complainant
party for withdrawal of the said case and on refusal complainant of the present
that was murdered by them He further contended that if the applicant will
release other witnesses of the case will be murdered and lastly he prayed that
his bail application may be dismissed.
6. I have heard the learned counsel
for the parties and perused the material available on record with their able
assistance.
7. From
the perusal of FIR, it transpired that applicant was armed with pistols and was
available at the place of incident which was the house of complainant and facilitated
the main accused who fired upon the deceased who was complainant in FIR No: 96
of 2018 registered at Police Station Khanpur Mahar for offence U/S 302, 147,148
& 149 PPC.
8. The
record reflects that bail application for bail before arrest of brothers of
applicant was declined by the trial court on 05-01-2019 and thereafter their
bail after arrest was also declined on 22-01-2019, the main accused who cut the
neck of deceased Ghulam Muhhamad in that FIR is father of the applicant and
others are brothers who are still absconders. When their bail declined by the
trial court then their father the main accused issued threats to the
complainant of that FIR for withdrawal of the case otherwise he will be
murdered.On refusal, the complainant of
the saidcase was also murdered by the same co-accused along with applicant and
others who is the real father of the applicantas such instant FIR bearing Crime
No.48 of 2019 U/S 302, 147, 148,149 PPC at Police Station Khanpur Mahar was
registered.
9. The Honourable Supreme Court of Pakistan
declined the bail in the case even where the role for causing death has not
been assigned to accused in the case of SARWARI V.THE STATE ( 1991 SCMR 289
) and has held as under:-
2.
The facts, in brief, are that the report of the incident was lodged by Habibur
Rehman, Head Constable, on 22‑2‑1990 wherein he stated that an
informer had disclosed that the petitioner along with others was busy in
gambling. A raid was conducted by the police and they found the petitioner and
others playing gambling. In order to arrest, they were encircled but all of
them started running. Riaz Head Constable arrested the petitioner. The
petitioner called out Gul Khan that he had been arrested and he should get him
released. Thereupon Gul Khan pulled out a pistol from underneath his shirt and
fired a shot at Muhammad Riaz deceased one after the other Riaz was fatally
injured and the petitioner decamped.
Learned
counsel for the petitioner submitted that no overt act has been attributed to
the present petitioner. The petitioner had only requested Gul Khan for help,
and he did not instigate him to make fire at the deceased.
Specific
role has been ascribed to the petitioner. The High Court in its detailed order
rejected his bail application. A review application was also moved which was
also rejected. As the petitioner was apprehended by the police, he instigated
his co‑accused to get him released whereupon the co‑accused Gul
Khan had fired at the deceased. Prima facie it cannot, therefore, be argued
that it is a case of further inquiry.
The
petition has no force. The same is dismissed and leave to appeal is refused.
10. In the case where the role has not been
assigned against the accused and he was mere presence at the place of incident,
this court dismissed the bail plea in case of IBRAHIM V. THE STATE ( 2012
YLR 983 )and same is reproduced as
under:-
7.
I have considered the submissions advanced by the learned counsel for the
parties and perused the police file. Admittedly, the name of the applicant is
mentioned in the F.I.R. though no specific role has been assigned to him, but
no plausible explanation was rendered to justify the presence of the accused at
the place of occurrence, which had led to a tentative view that the accused
shared common intention to commit the murder of deceased. Reasonable grounds
were available to believe that applicant had shared the common intention with
co-accused in the commission of murder unless evidence of eye-witnesses is
recorded. Further, nothing was available on record to show that complainant
party had any motive or reason to falsely implicate accused in the case.
Moreover, the case was at preliminary stage and evidence of none of the
prosecution witnesses has been recorded. Now the police has submitted challan,
as informed by learned A.P.-G. Sindh and learned counsel for the complainant, therefore the
suggestion made by learned
A.P.-G. is quite reasonable.
8.
In the circumstances, I am of the considered view that the case of the
applicant does not fall within the purview of further enquiry as he has formed
an unlawful assembly in furtherance of their common intention where two young
innocent persons have lost their lives and as such the applicant is vicariously
liable for the same.
11. Honourable Supreme Court of Pakistan also
declined the bail plea of accused, who was only present at the place of
incident and role only was of Lalkara in the case of CHIRAGH
DIN AND OTHERS V.THE STATE ( PLD 1967
S.C 340 )and has held as under:-
The
High Court distinguished this case on the ground that the person to whom bail
was granted by the Supreme Court was an old man who was shown to be suffering
from illness, and his case was therefore one that fell within the exceptions
specified in section 497, Cr. P. C. The distinction has been rightly drawn. In
this case, Chiragh Din is 35 years old. This is no great age. He is not alleged
to be sick or infirm. The precedent case is not to be read as laying down that
a lalkara is never to be regarded as a sufficient overt act, if proved, to II
establish abetment. That question must be decided by the trial Court on an
appreciation of all the facts, including the degree of interest in the crime
possessed by the person who shouted the lalkara and the part he played in the
background of the affair. There are circumstances in which mere presence f at
the scene of the crime is a sufficient overt act to support conviction, by the
application of section 114, P. P. C. Shout in of a lalkara may, in such
circumstances, have effect as a further overt act of abetment.
It
is not possible, without a full appreciation of the evidence relating to the
background of a crime and its actual commission. to say that proof of a person
shouting a lalkara, is not enougl3 to constitute a reasonable ground for
thinking that lie has been guilty of abetment of such crime. The proposition
advanced by learned counsel, in the form of a rule of evidence, cannot he
accepted as one of general application. The appreciation on evidence and the
drawing of conclusions therefrom in relation; to all the circumstances is the
function exclusively of the trial Court. It cannot be anticipated by a Superior
Court dealing: with an ancillary matter, e.g., the grant of bail, pending trial.
The
petition is accordingly dismissed.
12. It is a well-settled principle of law that
deeper appreciation of evidence is not permissible at the stage of bail and the
material is to be assessed attentively. From the tentative assessment of
material, it is established that the applicant is connected with the commission
of offence as the applicant is nominated in the FIR with the role that he was
armed with pistol was available at the place of incident the same was the house
of complainant and applicant has no explanation of such presence, all witnesses
supported the case of the prosecution in their statements under section 161
Cr.P.C, the medical evidence is corroborative with ocular account, the father
of the applicant and other brothers who are absconders in the present case have
repeated the offence by committing the murder of the complainant of the FIR No.
96 of 2018 the deceased in the present case.
13. From the tentative assessment of material
available on record as has been discussed above the applicant is unable to make
out his case for grant of bail hence the instant bail application is dismissed.
14. Needless
to mention that the observations made hereinabove are tentative in nature and
shall not cause prejudice to the right of either party at trial.
J U D G E