ORDER SHEET

IN THE HIGH COURT OF SINDH

CIRCUIT COURT, HYDERABAD

Criminal Bail. Appl. No.696/2009

Order with signature of Judge

10.08.2010

Syed Ghulam Hyder Shah Advocate for Applicant.

Syed Meeral Shah Deputy Prosecutor General Sindh

Mr. Riaz Ahmed Shaikh Advocate for the complainant.

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Ahmed Ali Shaikh J: Through the instant application, applicant Amir Hussain seeks bail in crime No.45/2006 of P.S. Tando Jan Muhammad registered u/s 302, 34 PPC.

2.         The bail plea of the applicant/accused was turned down by trial court vide order dated 27.10.2009.

3.         The contents of prosecution case in nut shell are that on 10.12.2006 at 1300 hours, applicant alongwith co-accused Jamaluddin and Arif came at the cattle pond of deceased Muhammad Yasin, out of them applicant was armed with lathi while Jamaluddin had hatchet and Arif was armed with TT Pistol. In presence of P.Ws Muhammad Shahid and Zahoor Ahmed, applicant caused lathi blows, Jamaluddin caused hatchet blows on the head of deceased while accused Arif caused him fire arm injury with his pistol resultantly the deceased Muhammad Yasin died at the spot. Such FIR was lodged by Mst. Amna wife of deceased Yasin.

4.         It is inter alia contended by the learned counsel for the applicant that the case against the applicant is false, fabricated and concocted one and it is outcome of enmity. Per learned counsel, as per postmortem report cause of death is fire arm injury which is attributed to co-accused Arif; the applicant is behind the bar since 10.12.2006 and not a single witness has been examined by the prosecution as yet. It is urged with vehemence that the FIR is delayed by 1 ½ hour, and no explanation has been furnished in this regard. Per learned counsel the trial court did not consider or appreciate the authority relied upon while passing the impugned order. In support of his contention, he has relied upon PLJ 2000 Cr. C. 1681 (Abdul Hafeez Vs. The State), PLJ 2004 Cr.C 664 (Dil Murad & another Vs. State), PLJ 2004 Cr.C 1030 (Jehangir Vs. State), PLJ 2000 Cr.C 578(Nisar Khan etc Vs. State etc), PLJ 2006 Cr.C 1088 (Asif Vs. State) and 1999 SCMR 1360(Faraz Akram Vs. The State)

5.         Conversely, Syed Meeral Shah Deputy Prosecutor General Sindh for the State duly assisted by Mr. Riaz Ahmed Shaikh Advocate for the complainant opposed the bail plea of the applicant on the ground that his name appears in the FIR and he shared common intention with co accused and committed murder of deceased; medical evidence also corroborates the version of the prosecution.

6.         Heard learned counsel for the parties and perused the record.

7.         I have given due consideration to the submissions made by the learned counsel for the parties and have gone through the material available on record. From the perusal of record, I find that name of the applicant transpires in the FIR, which was promptly lodged; specific role of causing head injury is assigned to him and it is specifically mentioned that the present applicant and co-accused caused lathi, hatchet blows as well as fire arm injury to the deceased at his head. 161 Cr.P.C statements of P.Ws Muhammad Shahid and Zahoor Ahmed were recorded on the very same day i.e. 10.12.2006. The above named P.Ws have supported the case of prosecution in their 161 and 164 Cr.P.C; statements, which is further corroborated by medical evidence. The offence is punishable upto death sentence and falls within the prohibitory clause of section 497(1) Cr.P.C. The law relied upon by the learned counsel for the applicant is on distinguishable facts to that of the present case and thus is not applicable in the case in hand.

In case of Abdul Hafeez supra, accused was admitted on bail as it is alleged in the FIR that the Petitioner had caused Sota blows after the deceased and P.Ws had received fire arm injuries at the hands of co-accused.

In Dil Murad and another’s case supra, the accused were granted bail on the ground that they were merely found at the spot with lathi and hatchet and no overt act was attributed to them whereas in the case in hand, the applicant was not merely present but he actively participated in the commission of offence and caused lathi injuries to the deceased at his head.

In Gul Muhammad’s case supra, the accused was extended concession of bail on account of presence and making fires in the air but he did not cause any injury to the deceased.

In Nisar Khan’s case supra, accused was granted bail as there was no recovery and medical evidence also did not support the case of prosecution.

In Asif’s case supra, bail was granted to the accused on the ground that he did not cause any injury to the deceased but caused on nominal injury to a P.W.

So for the case of Faraz Akram supra is concerned, the accused was granted bail by Honourable Supreme Court as no overt act was allegedly ascribed to the accused except of ineffective firing which was also disproved because no empty was recovered from the spot.

In case of Todo and another Vs. The State (2001 P.Cr.L.J 649 bail was refused to the accused on the ground that the accused were armed with guns had accompanied co-accused to the place of occurrence who (co-accused) had fired with pistol at the head of the deceased and the accused had been aiming their guns towards the witnesses to prevent from interference. In above case it was further held that overt act does not mean merely causing of injury entire facts and circumstances of the case are to be seen to find out if any overt act has been attributed or not to the accused. While in the case in hand the present applicant alongwith co-accused duly armed with weapons came at the cattle pond of the deceased and in presence of the P.Ws had committed his murder which prima-facie shows that they had common intention that’s why they came from their houses at the cattle pond of the deceased. The Honourable Supreme Court AJ & K in case of Khadim Hussain and five others Vs. Sher Afzal & another (2000 P.Cr.L.J 974) held that question of vicarious liability cannot be determined at the stage of bail if in the circumstances of the case it could be gathered that the accused had pre planned a scheme, hatched and conspiracy and in execution of that plan or conspiracy they participated in the commission of offence, question of vicarious liability applies with full force, however, this has to be ascertained cautiously without entering into detailed scrutiny and appreciation of the merits of the case of prosecution. It is further held that for application of section 149 P.P.C it is necessary (i) that one should be a member of an unlawful assembly, (ii) the offence should be committed by a member of an unlawful assembly and (iii) that the offence should be of such a nature that the members of that assembly knew that offence was likely to be committed in prosecution of their common object.

8.         In view of the above, the present bail application lacking in merits stands disposed of.

9.         The findings are tentative in nature and will not affect the merits of the case.

10.       These are the reasons in support of short order dated 09.08.2010, whereby the bail application was dismissed.

                                                                                    JUDGE

A.K