IN THE HIGH COURT OF SINDH BENCH AT SUKKUR

Cr. Bail Application No.S-90 of 2019

Applicants/accused: Ali Bux and Ghulam Abbas alias Abbas, Through Mr. Mujeeb-Ur-Rehman Soomro, Advocate.

Complainant: Mr.Shabbir Ali Bozdar, Advocate for LRS of the deceased.

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 bail application, applicants/accused Ali Bux and Ghulam Abbas alias Abbas, seek after arrest bail in FIR No.96/2018, registered at Police Station Khanpur Mahar, under Section 302, 147, 148 & 149 PPC.Applicants/accused applied for bail before the Additional Sessions Judge-II, Ghotki, who declined the bail vide order dated 22.01.2019, hence applicants approached this Court for bail.

2. The brief facts of prosecution case according to FIR bearing Crime No.96/2018 dated; 21.11.2018 lodged by one Ali Muhammad Mahar at Police Station Khanpur Mahar are that there is dispute between complainant and Amanullah and others are going on over landed property, on that accused Amanullah and others were annoyed and asked to complainant time will come they will be seen him. On the day of incident viz. 21.11.2018, the complainant along with sons Ali Raza, Talib Hussain and minor grandson Ghulam Muhammad son of Ali Raza aged about 08 years were going to look after the crop. The grandson of the complainant Ghulam Muhammad left his house early before them, when he reached his cultivated sugarcane crop the complainant heard the cries of his grandson Ghulam Muhammad, then complainant party immediately run towards cries and reached at 1630 hours at Sugarcane crop and saw that accused Amanullah son of Soomro armed with Kati, Ahmed Ali son of Amanullah, Muhammad Ali son of Amanullah were caught hold of Ghulam Muhammad from his arms and legs, Abbas son of Amanullah, Ali Bux son of Amanullah were armed with pistols straight at complainant party and asked not to come near to them today they will murder Ghulam Muhammad. Due to fear of weapons they did not go near to them, on seeing accused Amanullah caught Kati blow on the neck of Ghulam Muhammad and cut the neck, the blood was oozing and also injury behind the head and blood was oozing from injury and was dead. Thereafter, complainant with the help of PWs brought the dead body at PS Khanpur Mahar wherefrom the complainant received letter from PS and brought the dead body at Taluka Hospital Khanpur Mahar and after conducting post mortem the dead body brought at his village and left the PWs on dead body and he came at PS and lodged the FIR, hence this FIR.

3. Mr. Mujeeb-Ur-Rehman Soomro learned counsel for applicants/accused contended that applicantsare innocent and have been involved by the complainant due to enmity; that there is delay of 3-30 hours in registration of Fir; that FIR was registered after the post mortem; that only presence of applicants is shown at the place of incident no overact has been assign against the applicant; that sharing of common intention is to be decided by the trial court after recording the evidence; that allegation of murder is against co-accused Ammanullah and he prayed for grant of bail.

4. Learned DPG for the state conceded the request of counsel applicant and states that only allegation of lalkara has been assigned against the applicant. And the main allegation is against the co-accused.

5. Mr. Shabbir Ali Bozdar learned counsel for LRS of the complainant contended that applicants were very much available at the place of incident with their respective weapons; that they facilitated the main accused who is their father for committing a heinous offence of murder; that after the arrest of applicant their father issued threats to complainant party for withdrawal of the present case and on refusal complainant of the present case was murdered by their father and such FIR bearing Crime No.48 of 2019 was registered at the same police station. He further contended that if the applicants will release other witnesses of the case will be murdered and lastly he prayed that their 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 the same was lodged promptly. Applicants were armed with pistols and they aimed pistols upon the witnesses and facilitated the main accused who cut the neck of deceased Ghulam Muhammad grandson of the complainant and the main accused is the father of applicants.

8. The record reflects that application for bail before arrest of applicants 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 is their father and others are brothers of applicants who are still absconders. When the bail of applicants was declined by the trial courtthen their father the main accused issued threats to the complainant for withdrawal of the present case otherwise he will be murdered.On refusal, the complainant of the present case was also murdered by the same co-accused who is the real father of the applicants and such FIR bearing Crime No.48 of 2019 U/S 302, 147, 148,149 PPC at Police Station Khanpur Mahar was registered.

8. 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.

9. In the case where the role has not been assigned against the accused and he wasmere 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.

10. 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.

11. 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 applicants are connected with the commission of offence as the applicants are nominated in the prompt FIR with the role that they were armed with pistols and aimed pistol upon the complainant party and their father cut the neck of deceased, 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 applicants and other brothers who are absconders in the present case have repeated the offence by committing the murder of the complainant of the present case and said FIR was also registered and in such case, they are also absconders.

12. From the tentative assessment of material available on record as has been discussed above the applicants are unable to make out their case for grant of bail hence the instant bail application is dismissed.

13. 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