IN THE HIGH COURT OF SINDH BENCH AT SUKKUR
Crl. Bail Application No.S-35 of 2020.
DATE
OF HEARING |
ORDER WITH
SIGNATURE OF JUDGE |
For
hearing of bail application.
Date
of hearing 17.04.2020.
Mr. Fida
Hussain Sahito Advocate for applicant.
Mr.
Khalil Ahmed Maitlo DPG for State.
***************
O
R D E R
SHAMSUDDIN
ABBASI, J:- Through
instant bail application, applicant Manzoor son of Bagh Ali Thebo
seeks
Post-arrest bail in Crime No.56/2019 registered at Police Station, Kotdiji for offence punishable
under Sections 302, 452, 114, 147, 148 PPC. Earlier his bail plea was
declined by learned trial Court vide order dated 06.01.2020.
2. It
is alleged in the FIR that on the instigation of present applicant co-accused
Hakim caused lathi blow to deceased Mst. Dadli which hit on her head and later
on she died.
3. It
is contended by learned Counsel for applicant that applicant is innocent and has
falsely been implicated in this case due to dispute over landed property in
between the parties; that there is delay of one day delay in lodging of the FIR
and no any plausible explanation has been furnished; that role of causing fatal
injury is attributed to co-accused; that this Court has granted bail to
co-accused Parvez while learned trial Court has also granted bail to co-accused
Sarfraz alias Sharfo and the role of present applicant is on identical footings
to that of co-accused hence, he is also entitled for grant of bail; that case
has been challaned and applicant is no more required for further investigation.
By stating so, he prayed for grant of bail. He relied upon case of Tarique Zia
v. The State reported in 2003 SCMR 958 and unreported case Re-Dil Nawaz &
another v. The State passed by this Court in Crl. Bail application
No.S-632/2016.
4. On
the other hand, learned Deputy Prosecutor General appearing for the State vehemently
opposes for grant of bail on the ground that case of present applicant is
on different footings to the case of co-accused Parvez and Sarfraz alias Sharfo
who were admitted on bail; that active participation in the
shape of role of instigation has been assigned to the present applicant and on
his instigation one innocent lady has lost her life; that offence comes within
the prohibitory clause of Section 497 Cr.P.C hence, applicant is not entitled
for grant of bail.
5. Heard
learned Counsel for the applicant and learned Deputy Prosecutor General for
State and perused the record. Admittedly,
there is one day delay in lodging of
the FIR as incident has taken
place on 04.06.2019 at 1830 hours whereas the FIR has been
lodged on 05.06.2019 at 1600 hours but no plausible explanation has been furnished by the complainant for such inordinate delay and in background of murderous
enmity it cannot be ruled out that FIR has been lodged after due deliberation
and consultation. It is matter of record that specific role of causing
lathi blow to deceased Mst. Dadli has been assigned to co-accused Hakim, whereas the role of
instigation has been attributed to present applicant. This Court has granted
pre-arrest bail to co-accused Parvez vide order dated 23.12.2019 whereas
post-arrest bail has been granted to co-accused Sarfraz alias Sharfo by learned
trial Court vide order dated 06.01.2020 who were shown present at the scene of
offence duly armed with lathis. In my humble view that role of instigation and
role of mere presence are not distinguishable on the ground that charge against
them are similar in nature by sharing common intention/object and it is well
settled proposition of law that question of vicarious liability is yet to be
determined at the trial. The
Honourable Supreme Court of Pakistan has held in the dictum laid down in the
case of Manzoor Hussain and another v.
The State reported in 2011 SCMR 902 wherein it has
held that;
“It would be seen that bail cannot be refused on the
basis of vicarious liability, unless it is shown through positive evidence that
indeed co-accused played a role in the crime in question. This does not appear
to be the case in the present matter.”
In
case of Tariq Zia v. The State, reported in 2003 SCMR 958, wherein the Honourable Supreme
Court of Pakistan has held that;
“The
accusation against the petitioner in the FIR are that he raised only a Lalkara
to the effect that the enemy had come and on that, Lalkara other accused
attacked the complainant side. The contents of the FIR show that the accused
was empty-handed and has not played any active/overt act in the commission of
the offence. It would be for the trial Court to examine the evidence and
determine the effect of the Lalkara raised by the petitioner. At this stage, we
fell that prima facie, a case for grant of bail has been made out.
6. The
applicant is in custody, case has been challaned and applicant is no more
required for further investigation, no purpose would be served to keep him in
jail for indefinite period therefore, applicant has been able to make out a case for grant of bail. Accordingly,
instant bail application is allowed. The applicant/accused Manzoor Thebo is granted post-arrest bail subject to his furnishing solvent surety in
the sum of Rs.300,000/- (Rupees Three
lacs) and PR bond in the like amount
to the satisfaction of the trial Court.
Bail application stands disposed of.
J U D G E
Ihsan