ORDER-SHEET

IN THE HIGH COURT OF SINDH, CIRCUIT COURT LARKANA  

Crl. Bail Appln. No. S-  267 of 2023.

Date of hearing

Order with signature of Judge

21.08.2023.

For hearing of bail application.

            Mr. Ali Hassan Narejo, Advocate for applicant.

            Mr. Ghulam Sarwar Abdullah Soomro, Advocate for complainant.

            Mr. Aitbar Ali Bullo, Deputy Prosecutor General.

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Shamsuddin Abbasi, J: Through this bail application, applicant Usman alias Muhammad Usman son of Ditto alias Allah Ditto Chandio seeks his admission to post-arrest bail in Crime No.15/2018 registered with P.S Kety Mumtaz (District Larkana) for offences punishable under Sections 302, 148, 149, 114, 427 P.P.C., after rejection of his bail plea by learned trial Court vide order dated 29.04.2023.

            As per prosecution case, the allegation against present applicant is that on 12.8.2028, he along with co-accused came at the scene of alleged offence and instigated rest of his co-accused for firing upon deceased and on his instigation co-accused Rashid, Ayaz, Allah Dino, Hafeez, Muhammad Ali, Mumtaz and unknown accused fired kalashnikov shots at Aslam and Dilsher respectively, resulting into their death. The motive for the alleged incident as set-out in the F.I.R is previous ill-will between the parties over family affairs.

            Learned counsel for the applicant mainly contended that no any active role of causing firearm injury to deceased is assigned to applicant except only instigation. 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. Learned counsel further contended that during course of investigation the applicant was found innocent and his name was placed in column No.2 of the challan sheet. He further added that the applicant had no knowledge about his joining as accused in the case by the Magistrate concerned, as such his absconsion, if any, was not with conscious mind.  Per learned counsel the applicant has been in the custody since 12.2.2023 without any progress in the case.  Lastly, he prayed for grant of bail to applicant.

            Conversely, learned Advocate for complainant vehemently opposed the bail application on the grounds that the applicant has been nominated in the F.I.R with role of instigation to co-accused, who committed murder of two innocent persons on his instigation, as such the applicant is vicariously liable for these two  murders; that the applicant after commission of alleged offence remained fugitive from law for about five years, 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.

            Learned D.P.G appearing for the State also opposed grant of bail while adopting the arguments made by learned Advocate for complainant.

            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 is assigned to him. The applicant was allegedly armed with pistol at the time of incident, but it is not alleged against him that he used the pistol in the commission of offence; but he has acted as instigator only as alleged by the prosecution.  Those were other co-accused, who are alleged to have fired kalashnikov shots at two deceased. As such, question of sharing common intention and vicarious liability of the applicant with principal accused would be determined at trial. It is also matter of record that during course of investigation the applicant was found innocent and his name was placed in column No.2 of the challan sheet. This aspect also makes the case of the applicant/ accused as one of further inquiry as envisaged in Subsection (2) of Section 497 Cr.P.C. 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. 12.02.2023 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 Usman alias Muhammad Usman Chandio 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/*