IN THE HIGH COURT OF SINDH, CIRCUIT COURT,

LARKANA

Crl. Bail Appln. No.  S- 24 of 2021.

Applicant:                Ali Hassan Jeho, through Mr. Ghulam Rasool Narejo, Advocate.

Complainant:          Abdullah Jeho, through Mr. Ali Mardan Narejo, Advocate.

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

Date of Hearing:                 12.07.2021.

Date of Order:                     12.07.2021.

O R D E R

Adnan-ul-KarimMemon, J: Through the captioned bail application under Section 497 Cr. P.C, the applicant Ali Hassan son of Imdad Ali Jeho is seeking post-arrest bail in respect of cognizable offense registered on 13.11.2020 on behalf of complainant Abdullah Jeho at Police Station Naudero, being FIR No. 119/2020, under Sections 302, 324, 114, 337-H(ii), 147, 148 PPC (however, Section 337-A(ii) and 337-F(i) PPC were added in the final charge sheet), with an unsuccessful attempt to secure bail in that regard having earlier been made vide like application preferred before the learned Additional Sessions Judge, Ratodero, where the case is stated to be pending.

Concisely the version of the events depicted in the aforesaid crime and the accusation made against the applicant is that of instigating his accomplices to murder Ali Gul Jeho (deceased) and causing pistol butt blows to P.W Muhammad Pariyal. Such report of the incident was made before the concerned Police station on 13.11.2020. Finally, the applicant was arrested and booked in the aforesaid crime. He being aggrieved by and dissatisfied with his arrest in the aforesaid crime, preferred bail application No.1585 of 2020 before the learned Additional Sessions Judge, Ratodero, however, his plea was rejected vide order dated 09.01.2021 on the ground that he is connected with the offense charged with the specific role of instigation to his accomplices as well as by causing pistol butt blows to one Muhammad Pariyal supported by medical evidence.

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 enmity; that no active role of causing any injury to deceased is assigned to the applicant, except instigation and that while leaving the scene of incident he allegedly made butt blowsto P.W Muhammad Pariyal, such medical evidence is silent on such injury; and, that the applicant has remained in custody for more than nine months; that so far as recovery of the 30-bore pistol from applicant is concerned the alleged empties sent to the ballistic expert who opined that the same was not fired from the pistol as discussed supra; that the case of the present applicant is of instigation and causing butt blow to one of P.Ws, and since medical evidence belies such injury on the body of P.W Muhammad Pariyal, as such the case of applicant calls further inquiry. 

Conversely, learned Counsel for the Complainant has contended that the applicant is named in the FIR with the specific role of instigation and caused butt blows to the PW Muhammad Pariyal. He next contended that the applicant accompanied by his accomplices, 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 offense 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 shared 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 / PWs cannot be burdened with common intention under section 34 of the Pakistan Penal Code or common object under section 149 of P.P.C; 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 and caused injuries to PW Muhammad Pariyal; 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 can be gone into only once evidence is recorded; that mere non-matching of empties with recovered 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 there is no delay in lodging of FIR.He lastly prayed for the dismissal of the instant bail application.

Learned Deputy Prosecutor General, Sindh opposed for grant of bail on the ground that in this case a young man has been murdered brutally and the present applicant has also facilitated co-accused to commit the heinous offense; besides, his presence was also marked at the place of the incident with firearm weapon and causing blows to one of the prosecution witnesses.

I have heard the learned counsel for the applicant and learned Advocate for the complainant as well as learned D.P.G for the state and perused the material available on record.

From the perusal of record, it reflects that there is the allegation of generalized nature of being present at the place of the incident with the alleged weapon, yet he is not alleged to have even attempted to cause any injury to the deceased resulting in his death, which is attributed to co-accused. However, the culpability of the applicant in the alleged crime certainly calls for further probe as it would be decided by the learned trial court after the recording of evidence during the trial, which factum, at this juncture, requires further inquiry into the guilt of the applicant. So for as, the allegation of causing butt blows to the PW Muhammad Pariyal is concerned, the medical report of injured PW Muhammad Pariyal shows that no visible fresh injury seen all over his body except old healed scar at the back of chest seen, which factum also required further inquiry. On the aforesaid proposition, I am fortified with the decision rendered by the Honorable Supreme Court in the case Kamran v. Kaman Malik and another (2020 SCMR 1814), whereby the Honorable Supreme Court was pleased to allow bail to the accused in the case instigation and on the premise that he was not attributed any harm to the deceased persons.

For the above reasons and from the tentative assessment of the record, the applicant Ali Hassan Jehohas made out a case for post-arrest bail in FIR No. 119/2020 of Police station Naudero for offenses under Section 302, 324, 114, 337-H (ii), 148,149 PPC r/w Section 337-A (ii) and 337-F (i) PPC added in the charge sheet dated 08.02.2021. The applicant shall be released on post-arrest bail in the aforesaid crime subject to furnishing his bail bond in the sum of Rs.100,000/- (One hundred thousand rupees) with one surety and P.R bond in the like amount to the satisfaction of the learned trial Court.

Needless to mention here that observations made hereinabove are tentative and would not prejudice the case of either party at trial.

These are the reasons for my short order dated 12.7.2021, whereby the applicant was granted post-arrest bail in the aforesaid crime.

JUDGE