ORDER-SHEET
IN THE HIGH COURT OF SINDH, CIRCUIT COURT LARKANA
Crl. Bail Appln. No. S- 549 of 2022.
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Date of hearing |
Order with signature of Judge |
05.12.2022.
1. For orders on office objections.
2. For hearing of bail application.
Mr. Inam Rehman Abro, Advocate for applicants.
Mr. Nawabuddin Chandio, Advocate for complainant.
Mr. Aitbar Ali Bullo, Deputy Prosecutor General.
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Amjad Ali Sahito, J: Through this application, applicants Fazalullah son of Amanullah and Sibghatullah alias Faizullah son of Naimatullah have sought for their admission to post-arrest bail in Crime No.22/2014, registered at Police Station Behram (District Kamber-Shahdadkot), for offences punishable under Sections 302, 324, 337-H (2), 114, 34 P.P.C.
The allegations against present applicants as per F.I.R lodged by complainant Zameer-u-ddin Chandio on 02.6.2014 are that they came at place of incident in company of co-accused persons and out of them applicant Fazalullah instigated rest of his co-accused for firing upon Akhtar Ali (the brother of complainant), while applicant Sibghatullah is alleged to have made aerial firing. While co-accused Naimatullah is assigned role of making fire upon Akhtar Ali. The motive for the incident, as set-out in the F.I.R, is that Akhtar Ali who was running shop, refused accused for giving them commodities on credit basis.
Learned counsel for the applicant mainly contended that, F.I.R is delayed for two days; that no any active role of causing any injury etc. is assigned to applicants except role of only instigation and aerial firing respectively. Per learned counsel, in these circumstances, the question of sharing common intention vicarious liability of present applicants with principal co-accused would be determined at the time of trial. Learned counsel further added that, it is settled law that mere absconsion of accused would not come in the way of grant of bail, if otherwise accused deserves such concession on merits of the case. In support of his contention learned counsel relied upon case of Mitho Pitafi v. The State and another (2009 SCMR-299).
Conversely, learned D.P.G. appearing for the State assisted by learned Advocate for complainant opposed grant of bail to the applicants on the grounds that the applicants have been nominated in the F.I.R with their names and parentage and that both of them had facilitated the principal co-accused, who fired at deceased, as such they are vicariously liable for murderous assault upon witness. They further added that, the applicants have remained fugitive from law for long time of about nine years; therefore, they do not deserve any concession. Learned Advocate for complainant in support of his contention relied upon 2020 SCMR 2089 and 2006 Y.L.R 2923.
No doubt, the applicants have been nominated in the F.I.R, but no any active or specific role of causing any injury to any of member of complainant party is assigned to them. The applicant Fazalullah has acted as instigator only and his mere presence has been shown in the F.I.R., while applicant Sibghatullah has been assigned role of aerial firing. The co-accused Naimatullah is alleged to have fired pistol at Akhtar Ali (deceased). As such, question of common intention and vicarious liability of the present applicants with main accused would be determined at trial. The case has been challaned and custody of the applicants is no more required to police for the purpose of investigation.
The Hon’ble Supreme Court granted bail to accused in case of Qurban Ali v. The State reported in 2017 SCMR 279, who was assigned role of “Lalkara”. And, in case and Mumtaz Hussain and 5 others v. The State (1996 SCMR 1125) the Hon’ble Supreme Court granted bail to accused, who was assigned role of causing simple blunt injuries to some of prosecution witnesses.
Perusal of impugned order reflects that, one of the grounds for refusing bail to applicants taken by the learned Court is that since applicants have remained absconders; they are not entitled for concession of bail. In this regard, the Honourable Supreme Court of Pakistan in the case of MITHO PITAFI versus THE State (2009 SCMR 299), has observed that bail could be granted, if the accused has good case for bail on merits and mere his absconsion would not come in the way while granting him bail.
In another case i.e. case of IKRAM-UL-HAQ V. Raja NAVEED SABIR and others (2012 SCMR 1273), the Hon’ble Supreme Court has again held that, where a case called for further inquiry into the guilt of an accused, bail was to be allowed to him as a mater or right and not by was of grace or concession and refusal of bail on account of abscondment of accused and such refusal of bail proceeded primarily upon the question of propriety and whenever a question of propriety was confronted with a question of a right, the latter must prevail. The Hon’ble Supreme Court has further observed as under:
“………. It has vehemently been argued by the learned counsel for the petitioner that respondent No.1 had remained a fugitive from law and had been declared as Proclaimed Offender and, thus, he was not entitled to be extended the concession of bail. We have, however, remained unable to subscribe to this submission of the learned counsel for the petitioner because the law is by now settled that in a case calling for further inquiry into the guilt of an accused persons bail is to be allowed to him as a matter of right and not by way of grace or concession. Bail is sometimes refused to an accused person on account of his absconsion but such refusal of bail proceeds primarily upon a question of propriety. It goes without saying that whenever a question of propriety is confronted with a question of right the latter must prevail. A reference in this respect may be made to the cases of Ibrahim v. Hayat Gul and others (1985 SCMR 382), Muhammad Sadiq v. Sadiq and others (PLD 1985 SC 182) and Qamar alias Mitho v. The State and others (PLD 2012 SC 222).
A tentative assessment of all the above factors makes the case of applicants one of further enquiry in terms of subsection (2) of Section 497 Cr.P.C. Accordingly, the instant bail application stands allowed. Applicants are admitted to bail upon their furnishing a solvent surety in the sum of Rs.100,000/- (One hundred thousand rupees) and P.R bonds in the like amount to the satisfaction of trial Court.
Before parting with this order, it is made clear that, observations made herein above are tentative in nature and would not prejudice case of either party at trial.
JUDGE
Ansari/*