IN THE HIGH COURT OF SINDH, CIRCUIT COURT,
LARKANA
Crl. Bail Appln. No. S- 457 of 2023.
Applicant: Fateh Din, through Mr. Saleemullah Abbasi, Advocate.
Respondent: The State, through Mr. Khalil Ahmed Maitlo, Deputy Prosecutor General.
Date of hearing: 11.03.2024.
Date of Order: 11.03.2024.
ORDER
Muhammad Saleem Jessar, J: Through this application, Fateh Din son of Abdul Khalique Nindwani has sought for his admission to post-arrest bail in Crime No. 17 of 2023, registered at Police Station Bahoo Khoso, for offences punishable under Sections 324, 147, 148, 114, 337-H (2) (2), 506 (2) P.P.C. His similar request was turned down by learned Additional Sessions Judge, Thull, vide his Order dated 26.06.2023.
2. The allegation against applicant Fateh Din as per F.I.R lodged by complainant Noor Khan Nindwani on 04.5.2023 is that on fateful day he along with co-accused came at the scene of alleged offence and he [applicant] instigated co-accused Abbas for murdering complainant party and on his instigation, the co-accused Abbas fired from T.T pistol upon Zafarullah [the son of complainant], which hit him on his left foot and he started bleeding. Whereas, applicant and other co-accused have also been assigned role of making aerial firing while leaving the scene of offence. The injured was firstly removed to Police station and then to hospital. The motive for the alleged incident as set-out in the F.I.R is previous ill-will between the parties on the issue of “Siyah-Kari”
3. Learned counsel for the applicant mainly contended that, F.I.R is delayed for more than six days; that previous grudge and ill-will between the parties is admitted by complainant in F.I.R, as such in background of previous grudge false implication of the applicant in this case cannot be ruled put. He further contended that no any active role of causing firearm injury to injured witness is assigned to applicant except only instigation and aerial firing. Per learned counsel, in these circumstances, the question of sharing common intention and vicarious liability of present applicant with principal co-accused would be determined at the time of trial. Per learned counsel, the applicant has been in the jail since 13.6.2023; the case has been challaned and physical custody of applicant is no more required to police for investigation purpose. Lastly, he prayed for grant of bail to applicant.
4. Conversely, learned D.P.G. half heartedly opposed the bail application on the grounds that the applicant has been nominated in the F.I.R with role of instigation and aerial firing, as such he is vicariously liable for the murderous attempt and that the offence with which the applicant is charged falls within prohibitory clause of Section 497 Cr.P.C.
5. Heard learned counsel for the respective parties and perused the material available on record.
6. Perusal of the record reflects that the F.I.R is delayed for about six day and in view of the previous grudge between the parties, it cannot be ruled out that F.I.R was lodged after due deliberation and consultation. 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 injured/ PW is assigned to him except that applicant had instigated to co-accused Abbas to kill complainant party. The applicant has acted as only instigator as alleged by the prosecution, whereas it was co-accused Abbas, who is alleged to have fired at PW/ injured. In these circumstances, question of sharing common intention and vicarious liability of the applicant with principal co-accused would be determined at trial. 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. The reference in this respect can be made to case of Attaullah and 3 others v. The State and another (1999 SCMR 1320), Attaullah v. The State through A.G Khyber Pakhtunkhwa and another (2020 SCMR 451) and case of Jahanzeb and others v. The State (2021 SCMR 63).
7. 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 Fateh Din is admitted to bail upon his furnishing a solvent surety in the sum of Rs.100,000/- (One hundred thousand rupees) and P.R bond in the like amount to the satisfaction of trial Court.
8. 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