IN THE HIGH COURT OF SINDH, CIRCUIT COURT, LARKANA

 Crl. Bail Appln. No.S-617 of 2020

Applicant:                      Kohyaroson of Biland Teghani, through

                                      Mr. Shahbaz Ali Khan Brohi, advocate

Respondent:                   The State, through Mr. Muhammad Noonari, Deputy Prosecutor General.

Dates of hearing:            08.03.2021.

Date of the decision:       08.03.2021.

ORDER

Zulfiqar Ali Sangi, J-     Applicant Kohyaro son of Biland Teghani,seeks bail in Crime No.20/2020 registered at Police Station, Napar Kotfor offences punishable under section 302, 148, 149, 337-H(ii), PPC. Earlier he had moved his bail after arrest application before the learned Sessions Judge, Shikarpur, same was dismissed vide order dated.25.07.2020, hence the present application.

2.       Facts in brief are that there is murderous dispute between complainant and accused. On 29.03.2020, complainant Mst.Samul Khatoon, her sister Mst. Raj Bai and Aunt Mst. Lela Khatoon, were harvesting wheat crop in their land while grandson of complainant, namely, Bahadur aged about 8 years was standing by their side. At 1200 hours there came accused Pir Bux @ Peeral, Ghazi, Meeral, Mehboob, Mehar, Waheed, Akbar with G3 rifles, Manzoor, Kohyaro, Mumtaz, Karamullah, Arsallah, Hafeezullah, Sanaullah, Ghulam Hyder with K.K rifles. On arriving accused Pir Bux alias Piral fired at minor boy Bahadur, which hit him on his right leg and accused Manzoor fired from his K.K which also hit him on his left leg, who after sustaining injuries fell down on earth. Then all accused made aerial firing and went away towards eastern side. Injured was rushed to Khanpur Hospital from where he was referred to Sukkur where he succumbed to injuries. The complainant then lodged F.I.R on 02.04.2020 at 1300 hours to the above effect.

3.       Mr. Shahbaz Ali M. Brohi, learned counsel for the applicant has contended that there is delay of four days in lodgment of the FIR, as such consultation, deliberation and false implication of the applicant cannot be ruled out and no explanation for such delay has been offered by the complainant party. He has further contended that though the name of the applicant/accused transpires in the FIR, but no active role of causing firearm injury is attributed to him and as per F.I.R only role of aerial firing is made against the present applicant. Learned counsel has relied upon the cases of Muhammad Sadiq and another v. The State (1996 SCMR 1654) and Soonharo v. The State (2006 YLR 2497) and has prayed that the applicant may be granted bail.

4.       Mr. Muhammad Noonari, learned D.P.G has opposed the grant of bail to the applicant on the ground that the name of the applicant transpires in the F.I.R and the offence with which the applicant is charged entails capital punishment of death, therefore, the applicant is not entitled for the concession of bail and he prayed for the rejection of the same.

5.       I have heard learned counsel for the applicant and learned D.P.G appearing for the State and perused the material available on record with their able assistance.

6.       The allegation against the applicant is only presence at the time of incident and firing in the air, however it was alleged in the FIR which was registered with the delay of four days that co-accused Pir Bux alias Piral and Manzoor fired from their respective weapons upon minor boy Bahadur, which hit him who after sustaining injuries wastaken to the hospital where he died.As regards to the sharing of common intention with the co-accused for committing murder, yet no witness is examined before the trial court and this point only be decided after the evidence of witnesses recorded before the trial court, none of the prosecution witnesses sustained even a scratch. It is no body's case that the prosecution witnesses escaped from the firing of the accused persons due to some hurdle or safety measure. The occurrence has taken place in open filed and if there would have been any intent at the part of the applicant, there was nothing which could restrain him from committing the occurrence on broader spectrum. During the course of investigation though recovery of empties from the spot was effected but as no weapon was effected from the applicant during the course of investigation, therefore, mere recovery of empties would be a question to be resolved by the trial court after recording of prosecution evidence. The contention of the learned counsel that the case of the applicant squarely fall within the ambit of section 497(2), Cr.P.C. is concerned, the same is reproduced as under:-

497. When bail may be taken in cases of non-bailable offence.

(1)   ……….

(2)   If it appears to such officer or Court at any stage of the investigation, inquiry or trial, as the case may be, that there are no reasonable grounds for believing that the accused has committed a non-bailable offence, but that there are sufficient grounds for further inquiry into his guilt, the accused shall, pending such inquiry, be released on bail, or, at the discretion of such officer or Court, on the execution by him of a bond without sureties for his appearance as hereinafter provided.

(3)   …….

(4)   …….

(5)   …….

          Perusal of the aforesaid provision reveals the intent of the legislature disclosing pre-condition to establish the word "guilt" against whom accusation is levelled has to be established on the basis of reasonable ground, however, if there exists any possibility to have a second view of the material available on the record then the case advanced against whom allegation is levelled is entitled for the relief in the spirit of section 497(2), Cr.P.C. In the instant case, as no overt act is ascribed to the applicant except the allegation of ineffective firing not supported by any recovery of weapon and as such the recovery of crime empties from the place of occurrence has no legal sanctity, therefore, the facts and circumstances narrated above brings the case of the applicantone of further inquiry falling within the ambit of section 497(2), Cr.P.C. entitling him for the concession of bail.

7.       Thus based on the particular facts and circumstances of the instant case the applicant Kohyaro Teghani has made out a case for grant of post arrest bail. Resultantly this bail application is allowed the applicant be release on bail subject to furnishing solvent surety in the sum of Rs.200000/= (two hundred thousands) to the satisfaction of the trial court.

8.       Needless to mention here that the learned trial Court shall not be influenced by observations made in this order while deciding the case of the applicant as the observations made hereinabove are tentative in nature.

J U D G E