ORDER-SHEET

IN THE HIGH COURT OF SINDH, CIRCUIT COURT LARKANA  

Crl. Bail Appln. No. S- 118 of 2023.

Date of hearing

Order with signature of Judge

05.10.2023.

1.         For orders on office objections.

2.         For hearing of bail application.

            Mr. Nadir Hussain Abro, Advocate for applicant.

            Mr. Aitbar Ali Bullo, Deputy Prosecutor General.

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Shamsuddin Abbasi, J: Through this bail application, applicant Qasim son of Arbab alias Ali Nawaz Jafferi seeks his admission to post-arrest bail in Crime No. 01 of 2020 registered with P.S Nabi Shah Wagan (District Shikarpur) for offences punishable under Sections 302, 324, 337-H (2), 148, 149, 114 P.P.C., after rejection of his bail plea by learned trial Court vide order dated 22.06.2022.

            As per prosecution case, the allegation against present applicant is that on 24.01.2020, he along with co-accused came at the scene of alleged offence and co-accused opened fires upon complainant party resulting into death of one lady, while injuring father of complainant. The role assigned to the applicant is that of making aerial firing while leaving the scene of offence. The motive for the alleged incident as set-out in the F.I.R is previous enmity between the parties.

            Learned counsel for the applicant mainly contended that no any active role of causing firearm injury to deceased and or to injured is assigned to applicant except only aerial firing. Per learned counsel, in these circumstances, the question of sharing common intention vicarious liability of present applicant with principal co-accused would be determined at the time of trial. He further added that the applicant had no knowledge about his implication in this case, as such his absconsion, if any, was not with conscious mind.  Per learned counsel the applicant has been in the custody since 15.4.2022 without any progress in the case.  Lastly, he prayed for grant of bail to applicant.

            Conversely, learned D.P.G. opposed the bail application on the grounds that the applicant has been nominated in the F.I.R with role of making aerial firing, as such the applicant is vicariously liable for the alleged offence; that the applicant after commission of alleged offence remained fugitive from law, as such he loses some of his normal rights; and that the offence with which the applicant is charged is heinous one carrying capital punishment and falls within prohibitory clause of Section 497 Cr.P.C.

            Heard learned counsel for the respective parties and perused the material available on record.  

            It is matter of the record that, though the applicant has been nominated in the F.I.R, but no active role of making any fire upon any of the member of complainant party including the deceased and or injured is assigned to him. The applicant was allegedly armed with T.T pistol at the time of incident, but it is not alleged against him that he used the pistol in the commission of offence.  Those were other co-accused, who are alleged to have fired shots at deceased and injured. As such, question of sharing common intention and vicarious liability of the applicant with principal accused would be determined at trial. As for as, absconsion of the applicant is concerned, it is well settled law by now, that mere absconsion would not come in way of grant of bail, if otherwise a case for bail is made out.  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. The applicant is in the jail since date of his arrest i.e. 15.4.2022 without any progress in trial of the case. The case has already been challaned and physical custody of the applicant is no more required to police for the purpose of investigation. In these circumstances continuous custody of the applicant in jail is not likely to serve any beneficial purpose at this juncture.

            A tentative assessment of all the above factors and the material available on record makes the case of applicant one of further enquiry in terms of subsection (2) of Section 497 Cr.P.C., entitling him to grant of discretionary relief of bail to him. Accordingly, the instant bail application stands allowed. Applicant Qasim is admitted to bail upon his furnishing a solvent surety in the sum of Rs.300,000/- (Three hundred thousand rupees) and P.R bond 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/*