IN THE HIGH COURT OF SINDH BENCH AT SUKKUR

Criminal Bail Application No. S- 393 of 2021

                                   

 

            Applicant                  :           Ashique s/o Ghulam Qadir Malik, through Mr. Achar Khan Gabol, advocate

           

            Complainant            :           Haji Muhammad Qasim s/o Khan Muhammad Mirani, through Mr. Wazir Ahmed Ghoto, advocate

                                                                           

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

                                                               

            Date of hearing        :           13.09.2021 

            Date of order            :           13.09.2021

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                                                          ORDER

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ZAFAR AHMED RAJPUT, J.-       Applicant/accused Ashique s/o Ghulam Qadir Malik being abortive to get the concession of post-arrest bail from the Court of 1st Additional Sessions Judge-1(MCTC), Ghotki in Sessions Case No. 172 of 2021, vide order dated 04.06.2021, through this application seeks the same concession from this Court in Crime/FIR No. 28 of 2021, registered under sections 302, 311, 114, 147, 148, 149, P.P.C. at Police Station A- Section, Ghotki.

 

2.         It is alleged that on 10.02.2021, at about 0800 hours, present applicant, along with co-accused Muhammad Bux @ Keero, Muhammad Aslam, Irfan and one unidentified accused, duly armed with pistols, having formed an unlawful assembly and in prosecution of common object of such assembly, intercepted the complainant Haji Muhammad Qasim Mirani and PWs, and on the instigation of applicant, co-accused Muhammad Bux committed qatl-i- amd of his nephew Akbar Ali, 30/32, by causing fire shot injury to him under the pretext of “Karap”., for which, the accused were booked in the instant case. 

    

3.         Learned counsel for the applicant has mainly contended that the applicant is innocent and has falsely been implicated in this case; that there is no independent witness of the incident while place of incident has been shown in a busy public area; that the role attributed to applicant is that of instigator while the alleged motive is against the co-accused Muhammad Bux; that the  allegations against the applicant are absurd and baseless and no reasonable grounds exists to believe that he has committed the alleged offence; as such, he is entitled for the concession of bail on the ground of further inquiry.

 

4.         Per contra, learned counsel for the complainant has vehemently opposed the instant application on the grounds that the applicant is nominated in the FIR by name and on his instigation, co-accused Muhammad Bux committed qatl-i- amd of deceased; that all the PWs have fully implicated the applicant with the commission of alleged offence in their statements recorded under section 161, Cr.P.C.; that the alleged offence falls within the prohibitory clause of section 497, Cr.P.C and since no case of further inquiry has been made out, the applicant is not entitled for the concession of bail.

 

5.         The learned D.P.G. has adopted the arguments of learned counsel for the complainant.

 

6.         Heard the learned counsel for the applicant, complainant, D.P.G and perused the material available on record with their assistance.

 

7.         The applicant was arrested on 11.02.2021 and since then he is confined in judicial custody and since police has submitted the challan, he is no more required for further investigation. The contents of the FIR are indicative of the fact that the applicant, being a member of an unlawful assembly, was present at the occurrence duly armed with pistol; however, he did not fire even a single shot. Motive of the murder, as per complainant, was contracting of court marriage of the deceased with a lady, namely, Mst. Zeenat d/o Imamuddin Malik but the complainant has not alleged anywhere the anger of the applicant, as such, prima facie, the applicant had no motive to take part in the occurrence. The allegation against the applicant is that he instigated co-accused Muhammad Bux for the commission of alleged murder of deceased Akbar Ali; Hence, the question of vicarious liability of the applicant with regard to the commonness of his intention for committing alleged offence under the circumstances will be determined at the trial. In the circumstances of the case mentioned above, I have found the case against the accused one of further inquiry into his guilt, as envisaged under subsection (2) of Section 497, Cr. P.C. Accordingly, the accused is admitted to bail subject to his furnishing solvent surety in the sum of Rs.300,000/- (Rupees Three Hundred Thousand only) and P.R. Bond in the like amount to the satisfaction of the trial Court.

 

8.         Needless to mention here that the observations made hereinabove are tentative in nature and would not influence the trial Court while deciding the case of the applicant/accused on merits. However, in case the applicant misuses the concession of bail in any manner, the trial Court shall be at liberty to cancel the same after giving him notice, in accordance with law.

 

 

JUDGE