IN THE HIGH COURT OF SINDH, CIRCUIT COURT,LARKANA
Criminal Bail Application No.S- 247 of 2022.
Arbab Ali & another
V/S
The State
Applicants: Through Mr. Abdul Rasool Abbasi,
Advocate
Complainant: Through Mr. Attique Ahmed Soomro,
Advocate
State: Through Mr. Ali Anwar Kandhro,
Additional Prosecutor General.
Date of Hearing: 06.07.2022
Date of Order : 06.07.2022
O R D E R
ADNAN-UL-KARIM MEMON, J.- Arbab Ali son of Anwar and Passand son of Bahadur both by caste Leghari seek post arrest bail in F.I.R No.192 of 2021, registered at Police Station Khaipur Nathan Shah for offences punishable under Sections 302, 324, 147, 148, 149, 114, 504, 506/2, 337-H (2), 337-F (vi), P.P.C, after rejection of their post arrest bail plea by the learned trial Court vide order dated 30.04.2022, they have approached this Court, with the plea that complainant alongwith his uncle Ali Muhammad, cousin Bashir Ahmed and relative Haji, reached near village Lal Bux Rahoojo water supply road, where they were confronted by accused Bashir, who was armed with iron rod, Mehboob with hatchet, Mour with iron bar, Passand with gun, Arbab with wooden “Danda”, Murado alias Murad who was empty handed and two unknown assilants were armed with pistols; and, in the meanwhile accused Murado alias Murad instigated co-accused to kill the complainant party, on such instigation co-accused Bashir caused iron bar blow and accused Mehboob caused hatchet blows to Ali Leghari on his head and body, who fell down. The co-accused also fired upon them, in the intervening period, the eye-witness Haji attempted to rescue Ali Leghari, however, he also received bodily injuries at the hands of the accused; and, the injured Ali was taken to hospital where he succumbed to injuries during medical treatment, such F.I.R of the incident was lodged on 04.12.2021 by the complainant.
2. Mr. Abdul Rasool Abbasi learned counsel for applicants has contended that the applicants are innocent and they have been falsely implicated in this case by the complainant due to malafide intention with ulterior motives; that in the F.I.R. it is alleged that accused Mehboob caused hatchet blow to deceased Ali Leghari, whereas the role of mere presence has been attributed to the applicants Arbab Ali and Passand and the general role of causing lathi blow to injured, Haji, who has resiled from his statement by filing his affidavit. He further submitted that whether in the facts and circumstances of the case as alleged by the complainant in the F.I.R, such facilitation on the part of applicants at all requires, further probe within the contemplation of subsection (2) of Section 497 of the Code of Criminal Procedure, 1898, paving way for their release on bail, particularly when their continued custody is serving no useful purpose. He lastly submitted that nothing was recovered from the possession of the applicants, however, the police has foisted the Gun and Wooden Danda just to show their involvement in the alleged incident, which has no corroborative evidence; even no forensic report of alleged Articles is available on record to suggest their usage in the incident. He lastly prayed for allowing the instant bail application.
3. On the other hand learned Additional Prosecutor General assisted by Mr. Attique Ahmed Soomro learned counsel for the complainant has opposed the grant of bail to the applicants inter-alia on the grounds that the applicants are nominated in F.I.R. with a specific role; that as per the postmortem report of deceased Ali Leghari, he died due to injury caused by a hard and blunt substance, and the applicants were duly armed with Gun and Wooden Danda; he added that since the applicants have shared common intention and participated in the incident as such they are equally liable to be dealt with for the main offense and in such circumstances, there was/ is sufficient material of incriminating nature to show the active participation and complicity of the applicants in the perpetration of the above crime. In support of their contentions, they relied upon the case of Naseer Ahmed Vs. the StatePLD 1997 SC 347. The learned counsel also relied upon the case of Mubarik Shan v. The State 1986 SCMR 1681 and argued that in the said case bail was refused to the accused on the ground that it was alleged against him that not only he shouted “Lalkara” but the motive was also attributed to him. As far as the statement of injured witnesses is concerned a trend has been developed that witnesses sometimes; take a somersault and give favorable statements which are different from prosecution case; and, sometimes file affidavits also at the stage of hearing of bail application of the accused person with intention of creating doubt in the case of the prosecution to enable the accused to obtain bail, this trend needs to be curbed at all. He further submitted that this Court has to see that bail application is disposed of strictly according to the law on merits keeping in view the distinction between tentative assessment and actual evaluation of evidence by the trial Court. They lastly prayed for the dismissal of the instant bail application.
4. Heard learned counsel for the parties and have perused the material available on record and the case-law cited at the bar.
5. Tentative assessment of record reveals that the applicants have not been assigned the role of causing any injury to the body of the deceased Ali Leghari in the F.I.R, and the injured witness Haji has come forward with a different assertion about the participation of the applicants in the aforesaid incident, that factum needs to be looked into by the learned trial Court after the recording of the evidence. The question of whether the applicants used the alleged “Danda” in the incident could only be ascertained when a forensic report suggests its usage, which is to be looked into by the trial Court after calling the report if any; the mere presence of the applicants on the spot as portrayed by the complainant by itself is not sufficient to refuse the relief of post-arrest bail to them as it is yet to be ascertained, which is only possible when evidence is recorded. As per the contents of the FIR, the applicants were only present while armed with Gun and “Danda” at the spot at the time of occurrence; and, prima-facie, if the applicants had any intention to murder the deceased or cause injury to any member of the complainant party then they could have used the gun and “Danda” at the time of occurrence, even forensic report of the alleged articles has not been brought on record about the usage of the said weapons, in the incident, therefore, the presumption cannot be made at the bail stage about the question of vicarious liability of the applicants, 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). Although it is argued by learned counsel for the complainant that alleged recovery has been made from the applicants in this case which factum has to be seen by the trial Court whether the same alleged gun and “Danda” were used in the alleged incident after the recording of evidence of at least complainant within a reasonable time.
6. From the facts and circumstances of the case, I am of the tentative view that the applicants have made out the case in terms of subsection (2) of section 497 of the Code of Criminal Procedure, 1898, paving way for their release on post-arrest bail in the aforesaid crime.
7. In the light of the above, this bail application is allowed subject to the applicants’ furnishing the bail bonds in the sum of Rs.100,000/- (Rupees one hundred thousand rupees) each with one surety in the like amount to the satisfaction of the learned trial Court.
8. The observation made hereinabove shall not cause any prejudice to either party at the trial.
JUDGE