IN THE HIGH COURT OF SINDH, CIRCUIT COURT,
LARKANA
Crl. Bail Appln. No. S- 734 of 2023.
Applicant: Ghulam Hyder alias Pachhe, through Mr. Athar Abbas Solangi, Advocate.
Complainant: Sadoro, through Mr. Abdul Hakeem Brohi, Advocate.
Respondent: The State, through Mr. Aitbar Ali Bullo, Deputy Prosecutor General.
Date of Hearing: 21.03.2024.
Date of Order: 21.03.2024.
ORDER
Muhammad Saleem Jessar, J- Through captioned bail application, applicant Ghulam Hyder alias Pachhe son of Muhammad Ramzan Brohi has sought for post arrest bail in the case emanating from F.I.R No. 90 of 2022, registered at P.S New Foujdari (District Shikarpur), for offence punishable under Sections 302, 148, 149, 114 and 337-H (2) P.P.C; after his plea for post arrest bail was declined by learned Additional Sessions Judge-III, Shikarpur, by dismissing his application vide Order dated 07.12.2023.
2. The allegation against applicant as per F.I.R lodged by complainant Sadoro on 02.07.2022 is that on fateful day he along with co-accused came at the scene of alleged offence and he [applicant] instigated his co-accused for murdering complainant party and on his instigation, the co-accused Sher Muhammad alias dado made direct fire at Jameel Ahmed (the son of complainant), other co-accused Israr made direct pistol shot at Muhammad Zakriya (nephew of complainant), and co-accused Ghulam Nabi made pistol shot straightly at Muhammad Zakriya. Whereas, applicant and other co-accused have also been assigned role of making aerial firing while leaving the scene of offence. Both the persons fired at, died on the spot. 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 seven hours. 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 out. He further contended that no any active role of causing firearm injury to any of deceased 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. Learned counsel further contended that two co-accused, namely, Zubair and Abdul Rasheed have been granted bail by this Court and case of applicant is on same footings to that of co-accused, as such he is also entitled to same treatment and concession. Per learned counsel, the applicant 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 Advocate for the complainant vehemently opposed grant of bail to the applicant by contending that applicant stands nominated in promptly lodged F.I.R, showing his presence on the spot with role of instigation and aerial firing thereby facilitating his co-accused to commit murder of two innocent young persons. The applicant has remained fugitive from law for sufficient time, as such he has lost some of his normal rights and that case of co-accused who have been granted bail is on different footings, as they were only assigned role of aerial firing, whereas the applicant has instigated the principal accused for committing murder of two young persons and so also he is assigned role of making aerial firing while leaving the scene of offence. The offence with which applicant stand charged, carries capital punishment and falls within prohibitory clause of Section 497 Cr.P.C. In support of his contentions, learned counsel placed his reliance upon 2006 SCMR 966 and 2008 P.Cr.L.J 351.
5. Learned D.P.G. while adopting the arguments advanced by learned Advocate for complainant also opposed the bail application. He further added that, there is also recovery of empties from crime scene, which prove presence of the applicant on the spot.
6. Heard learned counsel for the respective parties and perused the material available on record.
7. Perusal of the record reflects that, although there is only allegation of instigation against applicant, but at the same time he has also been assigned role of making aerial firing while leaving the scheme of offence, as such his role is more than instigator and he is also the planner and provided assistance and facilitated to executors i.e. his co-accused for murdering two young persons, aged about 16 and 25 years, respectively. Per contents of F.I.R, the parties are already inimical towards each other over the issue of Siyah-Kari, and in such background it could not be assured at this stage that the instigation by the applicant was proverbial and common. Moreover, the incident is witnessed by the complainant and other prosecution witnesses and their presence at the scene of offence has been described within the body of FIR, and being relatives and in view of explanation given within the body of FIR, they are the natural witness. Medical evidence supports the ocular account of the prosecution case. Furthermore, the applicant has remained fugitive from law, and it is well established law that the fugitive of law loses some of his normal rights. So for as, contention of learned counsel that co-accused have been granted bail by this Court and applicant also deserve same concession and treatment on the basis of rule of consistency is concerned, suffice it to say that case of those co-accused is on different footings, as they were only assigned role of aerial firing, whereas the applicant has been attributed role of instigation, as well as of making aerial firing coupled with the fact that he also remained absconder (fugitive from law). More-so, the offence with which applicant stand charged, carries capital punishment and falls within prohibitory clause of Section 497 Cr.P.C.
8. From a tentative assessment of all the above factors and the material available on record, prima-facie there appear reasonable grounds for believing that the applicant has been guilty of the alleged offence, which is carrying capital punishment of death or imprisonment for life, dis-entitling him to grant of discretionary relief of bail. Accordingly, the instant bail application stands dismissed.
9. However, the learned trial Court is directed to pace-up trial of the case and conclude it within a period of preferably six (06) months.
10. 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