IN THE HIGH COURT OF SINDH, CIRCUIT COURT,LARKANA

Criminal Bail No. S- 02 of 2022.

Niaz Hussain Jeho

V/S

The State

Applicant:                                           Through Mr. Ghulam Rasool Narejo,

Advocate

Complainant:                                      Through Mr. Habibullah G. Ghouri,

Advocate.

State:                                                  Through Mr. Ali Anwar Kandhro,

Additional Prosecutor General, Sindh.

Date of Hearing:                                 06.07.2022

Date of Order    :                                06.07.2022

O R D E R

Adnan-ul-Karim Memon, J.- Through the captioned bail application under Section 497 Cr. P.C, the applicant Niaz Hussain son of Nadir Hussain 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), surprisingly learned trial Court declined the bail to the applicant vide order dated 16.12.2021 despite knowing the fact that this Court has already granted post-arrest bail to co-accused Ali Hassan vide order dated 12.7.2021 in Bail Application No.24 of 2021, and allowed the applicant to incarcerate in jail, this approach is not at all appreciated.

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 a report of the incident was made before the concerned Police station on 13.11.2020. Finally, the applicant was arrested and booked for the aforesaid crime. He being aggrieved by and dissatisfied with his arrest in the aforesaid crime, preferred bail application before the learned Additional Sessions Judge, Ratodero, however, his plea was rejected 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, even learned trial Court attempted to distinguish the case of the applicant from the case of co-accused Ali Hassan who has been granted post-arrest bail by this Court. Prima-facie the reasons assigned is not justiciable under the principle of the rule of consistency.

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 the deceased is assigned to the applicant, except allegedly made butt blows to P.W Muhammad Pariyal, such medical evidence is silent on such injury; and, that the applicant has remained in custody since his arrest; that no recovery from applicant has been made; as such the case of applicant calls further inquiry.  He also submitted that co-accused Ali Hassan has already been granted post-arrest bail by this Court as such rule of consistency is fully applicable, which point has been discarded by the learned trial Court without assigning justiciable cause and allowed the applicant to rot in jail for a crime which he has not at all committed. He prayed for allowing the bail application in terms of the rule of consistency.

Learned Counsel for the Complainant has contended that the charge has been framed and it is more appropriate to give direction to the learned trial Court to examine the material witnesses, however on merits he has submitted that the applicant is named in the FIR with the specific role of instigation and caused butt blows to the PW. 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 post-arrest bail; that the applicant shared his common intention with his 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; 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 on the same analogy as decided by the learned trial Court.

Learned Additional Prosecutor General has opposed the grant of bail to the applicant on the ground that the name of the present applicant is mentioned in the F.I.R. with a specific role of instigation and causing injury to one of the P.Ws, hence he prayed for dismissal of the bail application.

I have heard the learned counsel for the applicant and learned Advocate for the complainant as well as the learned Deputy Prosecutor General for the State and perused the material available on record.

This Court has already allowed post-arrest bail to co-accused Ali Hassan as discussed supra as such rule of consistency is fully applicable in the present case. Besides, 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, which version needs to be looked into by the learned trial Court, therefore, the presumption for and against cannot be made at the bail stage about the question of vicarious liability of the applicant, which at all requires further probe and inquiry. Reliance in this respect is placed on the cases of 'Muhammad Shakeel v. The State and others (PLD 2014 Supreme Court 458), 'Muhammad Murad and others v. The State and others' (2009 SCMR 348), and 'Subeh Sadiq alias Saabo alias Kalu v. The State and others' (2011 SCMR 1543).

Primarily, 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. In such circumstances, the Honorable Supreme Court was pleased to allow bail to the accused in the case of instigation on the premise that he was not attributed any harm to the deceased persons.

From the facts and circumstances of the case, I am of the tentative view that the applicant has made out the case, paving way for his release on 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) P.P.C added in the charge sheet dated 08.02.202, in terms of subsection (2) of section 497 of the Code of Criminal Procedure, 1898, more particularly, in terms of the principle of the rule of consistency.

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.

J U D G E