ORDER SHEET

IN THE HIGH COURT OF SINDH, BENCH AT SUKKUR

Cr. Bail Application No. S-279 of 2020

Applicant : Abdul Ghaffar Maitlo

Through Mr. Ghulam Shabbir Dayo, Advocate

Complainant : Mst. Sajida Matelo

Through Mr. Hamayoun Sheikh, Advocate

Respondent : The State

Through Mr. Shafi Muhammad Mahar, DPG

Date of hearing : 13.07.2020

Date of Order : 13.07.2020

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O R D E R

ADNAN-UL-KARIM MEMON, J: The applicant is seeking post-arrest bail in connection with Crime No.176/2019, for offences punishable under Section 302, 148, 149, 337-H(ii), 114 PPC, registered at P.S. B-Section Khairpur, against dismissal of his bail application by learned Additional Sessions Judge-IV, Khairpur, vide order dated 16.05.2020. He being aggrieved by and dissatisfied with the impugned refusal of bail order has approached this court.

2. The precise allegations against the applicant are that on 19.9.2019, he made aerial firing at the time of alleged incident, in the meanwhile Co-accused namely Muhammad Ayoub, Ali Dino, Abdul Rehman and Ismail all by cast Maitlo’s made straight fires upon the deceased Abdul Sattar, who succumbed to injuries and was taken to the Khairpur Medical College Civil Hospital Khairpur and passed away on the same day, such F.I.R was registered on 21.9.2019 under Section 302, 148, 149, 337-H (ii), 114 PPC, at P.S. B-Section Khairpur.

3. Mr. Ghulam Shabbir Dayo, learned Counsel for the Applicant has mainly contended that the applicant is innocent and has falsely been roped in this case by the complainant party due to family dispute; that there is delay of two days in registration of FIR and no plausible reason or cause has been given; that no specific role is assigned to the applicant, who along with co-accused while leaving the scene of incident had allegedly made aerial firing; and, that the applicant has remained in custody for more than nine months; that no any recovery has been made from the applicant; that the case of the present applicant is of mere presence which requires further inquiry; that mere presence of applicant does not attract offence under section 302 P.P.C.

4. Conversely, learned Counsel for the Complainant has contended that the applicant is named in the FIR with specific role of aerial firing. He next contended that applicant accompanied by his father and brothers, each lethally armed fired upon the deceased which hit him on his body. The said allegation is prima facie supported by the medical evidence. The offence alleged against him falls within the prohibitory clause of section 497(2) Code of Criminal Procedure. In these circumstances he is not entitled to the concession of bail; that the applicant share his common intention with co-accused to kill the deceased; that the principle of vicarious liability is fully attracted to the applicant. He next contends that there is no universal rule of law that a person who has not caused any injuries to the deceased cannot be burdened with common intention under section 34 of the Pakistan Penal Code or common object under section 149 of P.P.PC; that the participation of the applicant in the assault in question prima facie show his involvement in the occurrence; that the motive of murder of deceased is apparent from the fact that the applicant had come along with co-accused to the place of incident to fight and commit murder of deceased; that the entire act was pre-planned, and that in such circumstances, bail should be refused; that recovery is always a corroborative piece of evidence and as to what is the effect of recovery or non-recovery can be gone into only once evidence is recorded; that mere non-recovery of weapon from the applicant at the bail stage cannot be a ground for granting bail to the applicant; that existence of a common intention amongst the participants in a crime is the essential element for application of section 34 P.P.C which is fully attracted in the present case; that the reason for delay in lodging of FIR has been fully explained; that the present applicant has facilitated the co-accused to get murder of deceased. In support of his contention, he has placed reliance upon the case laws reported in 1981 SCMR 1092 and PLD 2001 Karachi 162. He lastly prayed that the vicarious liability is being attracted to the applicant; hence this bail may be dismissed.

5. Learned Deputy Prosecutor General, Sindh opposed for grant of bail on the ground that in this case a young boy has been murdered brutally and the present applicant has also facilitated them to commit the heinous offence; besides, his presence was also marked at the place of incident with firearm weapon.

6. On query of this Court as to whether the present applicant caused any injury to the deceased or any PW’s, he replied in negative and stated that the allegation against the applicant was that he made aerial firing only, however he supported the impugned order of dismissal of bail application.

7. I have heard learned Counsel for the Applicant, learned Counsel for the Complainant and learned Deputy Prosecutor General as well and have minutely perused the material available on record and case law cited at the bar.

8. Tentative assessment of record reflects the following aspects of the case:

(i) Incident took place on19.9.2019 and reported on 21.9.2019 after two days.

(ii) Applicant arrested on 25.9.2019 but no recovery of crime weapon.

(iii) Statement of impartial witnesses recorded by police under section 161 Cr.PC narrates different story.

(iv) Police let off co-accused Shahnawaz, Muhammad Ismail, Abdul Rehman and Abdul Jabbar and placed their names in Colum No.2 of the charge-sheet.

9. From the perusal of record, it reflects that there is allegation of generalized nature of resorting to aerial firing against the applicant nominated in the crime report, yet he is not alleged to have even attempted to cause any injury either to deceased Abdul Sattar or to any of the P.Ws, and active role of causing injuries to deceased Abdul Sattar resulting into his death is attributed to co-accused namely Muhammad Ayoub, Ali Dino, Abdul Rehman and Ismail, his culpability in the alleged crime certainly calls for further probe as it would be decided by learned trial court after recording of evidence during the course of trial, entitling him for the relief sought for. Prima facie, it appears from the record that the police has let-off the other co-accused as discussed supra on the premise that impartial witnesses came forward and narrated different story of the alleged incident, which factum, at this juncture, requires further inquiry into the guilt of the applicant. In view of the above, the Applicant has made out a case of post-arrest bail in the aforesaid crime at this stage.

10. The grounds agitated by the learned Counsel for the Complainant cannot be assessed at the bail stage without recording the evidence in the matter. The case law cited by him is distinguishable from the facts and circumstances of the present case.

11. These are the reasons for my short order dated 13.07.2020 whereby I have allowed the bail application, and admitted the applicant to post-arrest bail in crime No.176/2019, for offences punishable under Section 302, 148, 149, 337-H (ii), 114 PPC, registered at P.S. B-Section Khairpur, subject to furnishing his solvent surety in the sum of Rs.300, 000/- (rupees three lac) and P.R bond in the like amount to the satisfaction of the learned trial court.

12. The above findings are tentative in nature which shall not prejudice the case of either party during the course of trial.

JUDGE

Faisal Mumtaz/PS