THE HIGH COURT OF SINDH, CIRCUIT COURT, LARKANA

Criminal Bail Application No.S-366 of 2022

Applicant:            Khadim Shar through Mr. Azhar Hussain Abbasi, Advocate.

Complainant:      Mst. Zamiran Khatoon present in person.

Respondent:        The State

Through Mr. Aitbar Ali Bullo, Deputy Prosecutor General, Sindh.

Date of hearing:  27.10.2022

Date of Order:     27.10.2022

O R D E R

AMJAD ALI SAHITO, J.- Through instant Criminal Bail Application, applicant/accused Khadim son of Shadi Khan alias Allah Bux Shar seeks post-arrest bail in Crime No. 07/2021, offence under Sections 302, 114, 148, 149 PPC of the Police Station Gharhi Yasin district Shikarpur. Prior to this, he filed such application, but the same was turned down by the Court of Sessions Judge, Shikarpur vide order dated 17.06.2022; hence he filed instant Criminal Bail Application.

2.                The details and particulars of the F.I.R. are already available in the bail application  and F.I.R., same could not gathered from the copy of F.I.R. attached with such application, hence, needs not to reproduce the same hereunder.

3.                Per learned counsel, the applicant/accused is innocent and he has been falsely implicated in this case by the complainant with mala fide intention and ulterior motives, otherwise mere presence has been shown at the place of incident and no specific role has been assigned against him. He further submits that the applicant/accused is in jail and no more required for further investigation.  Lastly, learned counsel prayed for grant of bail to the applicant/accused.

4.                Notice was issued to the complainant, on the last date of hearing viz 20.10.2022 she sought time to engage the counsel of her choice, time was allowed and the matter was adjourned for today. She appeared today and again requests for time to engage the counsel, which is declined. However, she is directed to argue the matter and she vehemently opposed the grant of bail to the applicant/accused.   Learned D.P.G has also vehemently opposed the grant of bail, however, he admits that mere presence of the applicant/accused has been shown at the place of incident.

5. Heard and perused. Though the name of the applicant/accused has been appeared in the F.I.R., but no specific role has been assigned to him. In the case of Qurban Ali vs. The State (2017 SCMR 279), wherein Honourable Supreme Court of Pakistan has granted bail to the accused, who had not been attributed any overt act during the occurrence except the role of raising lalkara. The trial Court in such circumstances has to determine after recording pro and contra evidence, whether the applicants were vicariously liable for the act of their co-accused and that case was one of the further enquiry. It is the trial Court to see whether they have caused the offence or not and at bail stage only tentative assessment could be made.  Learned counsel for the applicants/accused pleaded malafide on the part of the complainant in view of the previous enmity he has been implicated in this case otherwise he is innocent. The case of the applicant/accused is one of further enquiry. In the case of Mumtaz Hussain and 5 others v. The State (1996 SCMR 1125), the bail was granted to the accused on the ground that despite being allegedly armed with deadly weapons like rifle, gun and hatchet only caused simple blunt injuries to some of the prosecution witnesses using the wrong side of their weapons. The question whether the accused in such a situation shared their common intention with the co-accused who had caused the death of the deceased needed further enquiry.   In the instant case no role has been assigned against the applicant/accused and only mere presence is shown at the place of incident and it is yet to be seen when the evidence would be recorded whether he has shared his common intention to the main accused or not and at bail stage only tentative assessment is to be made. Learned counsel for the applicant/accused prays that the applicant/accused is in jail and he is no more required for further investigation and his further detention will not improve the case of the prosecution. Learned counsel for the applicant/accused has made out case for grant of bail under sub-section (2) of section 497 Cr.P.C. The challan has been submitted and the applicant/accused is no more required for further investigation. 

6.                Accordingly, the bail application is allowed and the applicant/accused is admitted to bail subject to his furnishing solvent surety in the sum of Rs.100,000/-(Rupees One Hundred Thousands only) and P.R.Bond in the like amount to  the satisfaction of the learned Trial Court.

7.                Needless to mention here that the observations made hereinabove are tentative in nature and would not influence the learned Trial Court while deciding the case of either party at trial.

                                J U D G E

Manzoor