IN THE HIGH COURT OF SINDH BENCH AT SUKKUR

 

Crl. Bail Application No.S-293 of 2023

 

    

DATE OF

HEARING

 

ORDER WITH SIGNATURE OF JUDGE

 

For hearing of bail application

 

Date of hearing    18.09.2023.

 

Mr. Irshad Hussain Dharejo, Advocate for applicant.

                  Syed Sardar Ali Shah Addl. Prosecutor General.

                  ***************

 

O R D E R

 

KHADIM HUSSAIN SOOMRO, J;     Through instant bail application, applicant/accused Shahmor son of Luhno Khan Chandio, seeks post-arrest bail in Crime No.256/2022 Police Station, Naushehro Feroze, for an offence punishable under Sections 302, 337H(ii), 114, 148, 149  PPC. Earlier, his bail application was declined by learned Additional Sessions Judge/MCTC, Naushehro Feroze, vide order dated 13.03.2023.

 

 

2.      The case of the prosecution is that complainant Bakhtiar Ali Chandio lodged FIR at Police Station, Naushehro Feroze, stating that on 24.10.2022 at 2100 hours, his brother Arz Muhammad Chandio was an employee in the Police Department and expired in the year 2020 as issueless, his wife also expired. After the death of his brother Arz Muhammad, his nephews Waseem and Muhammad Ameen used to cultivate his lands and from such savings, they used to do charity. The complainant's brothers, namely, Shahmore and Deedar Hussain, used to say his nephews did not cultivate the land and were annoyed by the complainant party, and now the said land is barren. The houses of accused Deedar Hussain and others are adjacent to the houses of the complainant party. On the day of the incident, nephews Waseem, aged about 25 years, and Muhammad Ameen aged about 19 years, went outside the house, their brothers namely Abdul Sattar and Yaseen, also went behind them and at about 0800 hours;  Deedear, Mehtab both armed with pistols, Ubedullah and Shahmore armed with guns while Ghulam Murtaza armed with repeater came towards them and pointed their weapon and remain calm. Accused Ghulam Mustafa instigated co-accused and challenged that despite prohibition of cultivation they did not listen and threatened them to commit murder. Accused Deedar Hussain fired upon Waseem which hit him on his face, who fell down while accused Mehtab fired upon Ameen which hit him on his chest, who also fell down. Complainant party raised cries which attracted co-villagers thereafter accused persons went away by making aerial firing for causing harassment. The complainant party saw that Wassem had sustained firearm injury at the right side of his face/cheek towards his head, blood was oozing and found him in serious condition. At the same time, Muhammad Ameen had also sustained firearm injury on his chest through and through; he, too, was in critical condition. The complainant party then shifted both injured to Civil Hospital Naushehro Feroze, but on the way to the hospital, they succumbed to the injuries . The dead bodies of both the deceased were transported to Civil Hospital Naushehro Feroze, where all requisite procedures, including postmortem examination, were duly conducted. After completing the burial and funeral ceremony, the complainant appeared at the Police Station and registered his FIR to the above effect.

 

 

3     Upon the admission of this post-arrest bail application, many notices were sent to the complainant; nevertheless, but he failed to appear. A show cause notice was issued against the Station House Officer (SHO) of the Naushahro Feroze Police Station due to his failure to serve a notice to the complainant. On September 18, 2023, the concerned SHO produced the statement of the complainant's brother, Muhammad Yaseen, and his son, Lahno Khan. They reported that the complainant had passed away, and no representative had come forward on behalf of the complainant. This bail application cannot be kept pending for an undetermined period of time.   

 

4.      Learned Counsel for the applicant submits that the applicant/accused is innocent and has been falsely implicated by the complainant with malafide intentions and ulterior motives; that there is a delay of more than 12 hours in registration of FIR for which no plausible explanation has been furnished by the complainant hence, false implication of the accused cannot be ruled out; that specific role of causing firearm injuries to deceased persons namely Waseem and Ameen are assigned to co-accused Deedar Hussain and Mehtab, at the same time role assigned to present applicant is of causing aerial firing; that applicant is High School Teacher, and he is behind bars for last about 12 months; that nothing incriminating has been recovered from the present applicant/accused; that 173 report  has been submitted  and accused is no more required for further investigation and the case of the present applicant accused is of further enquiry. He prays for the grant of bail to the applicant/accused. (2005 MLD 1267) Akram v. The State (2023 P.Cr.LJ Note 24).  

 

5.       Learned Additional Prosecutor General contends that no doubt the applicant is nominated in the FIR, but his role is only making aerial firing, nothing else, and the question of vicarious liability of the accused with regard to the commonness of his intention for committing the alleged offence would be determined at the trial; he however, frankly concedes to the grant of bail on the ground that no overt act is attributed against him. 

6.      Heard arguments of learned Counsel for the parties and perused the record.

 

 

7.      Admittedly, the FIR was delayed for about 12 hours, whereas a dispute arose between parties over some landed property. Upon careful examination of the record prima facie reflects that the role of the applicant accused of engaging in aerial firings, which did not result in harm to any individuals; nevertheless, it is worth noting that the deceased did not sustain even a single scratch at the hands of the present applicant accused.  The incident occurred in a public setting, and if the applicant had any intention to kill, there were no constraints preventing him from carrying out the incident on a larger scale. The contention of the learned counsel that the case of the applicant squarely falls within the ambit of section 497(2), Cr.P.C. is concerned, the same is reproduced as under:-

497. When bail may be taken in cases of non-bailable offence.

(1)   ……….

(2)  “ If it appears to such officer or Court at any stage of the investigation, inquiry or trial, as the case may be, that there are no reasonable grounds for believing that the accused has committed a non-bailable offence, but that there are sufficient grounds for further inquiry into his guilt, the accused shall, pending such inquiry, be released on bail, or, at the discretion of such officer or Court, on the execution by him of a bond without sureties for his appearance as hereinafter provided”

8.  Upon examination of the provision mentioned above, it becomes apparent that the legislature intended to disclose a prerequisite for establishing the term "guilt" against the accused. This prerequisite necessitates the establishment of reasonable grounds. However, if there exists to be a second view of the material available on the record, in that case, the accused is entitled to relief in accordance with the principles outlined in section 497(2) of the Criminal Procedure Code. In the present case, the applicant accused is not accused of any overt act except for the allegation of ineffective firing. The question of vicarious liability of the accused/applicant with regard to the commonness of his intention for committing the alleged offence would be determined at the time of trial after recording evidence. Furthermore, the applicant is a teacher by profession and is about to attain superannuation. The applicant is behind bars since his arrest and trial have not yet concluded; as such, the incarceration of the accused/applicant would serve no useful purpose, and the case against him fell within the ambit of further inquiry.

 

9.   In the circumstances and in view of the above, I am of humble view that the applicant has made out a good prima facie case for his release within the meaning of Sub-section(2) to Section 497 Cr.P.C. Consequently, this bail application is hereby allowed. The applicant/accused, Shahmor Chandio, is granted post-arrest bail subject to his furnishing solvent surety in the sum of Rs.100,000/- (Rupees One lac only) and PR bond in the like amount to the satisfaction of the trial Court.

 

10.    Needless to mention here that observation made herein above are tentative in nature and trial Court may not be influenced of the same and decide the case on its own merits as per evidence and the material made available before it.

 

         Bail application stands disposed of in the above terms.

 

                                                           J U D G E

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