ORDER SHEET

IN THE HIGH COURT OF SINDH CIRCUIT COURT LARKANA

Crl. Bail Application No.S-458 of 2012

DATE	ORDER WITH SIGNATURE OF JUDGE

For Hearing

13.11.2012

Mr. Asif Ali Abdul Razak Soomro, advocate for applicant.

Mr. Ali Raza Pathan, State counsel.

Mr. Amanullah Malik, advocate for complainant .

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Naimatullah Phulpoto, J:- Applicant/Accused Abdul Aziz seeks bail in crime No.66/2012 registered against him at Police Station Saddar, Jacobabad under sections 302, 337-H(2), 114, 148, 149, PPC.

2. Brief facts of the prosecution case as disclosed in the FIR are that on 30.5.2012 Sundar Khan son of Bakhtiar Ahmed by caste Khoso lodged FIR alleging therein that on 29.5.2012 at evening time Dilawar, the uncle of the complainant, who was serving as Tapedar in Revenue at Department, Sukkur prepared for going to Sukkur for his service. Deceased Dilawar asked Bakhtiar Ahmed father of the complainant to drop at Sukkur. Thereafter complainant along with his cousins Muneer Ahmed, and Tapedar Dilawar and Bakhtiar Ahmed came out of the house and left for Sukkur on a car at about 6.30 p.m. saw accused Irfan armed with gun, 2.Shoukat armed with Klashnikov, both sons of Ghulam Akbar, 3.Habibullah alias Sikandar armed with gun, 4.Rahmatullah armed with Klashnikov and 5.Qudratullah armed with gun and two unidentified persons to whom complainant claimed to identify if and when came before him. It is alleged that accused persons issued challenges to the complainant party and asked them to stop the car. Thereafter, it is alleged that accused Habibullah alias Sikandar instigated co-accused to fire upon Dilawar and Bakhtiar. Thereafter it is alleged in FIR that accused Irfan fired from his gun which hit Dilawar, uncle of the complainant. It is alleged that accused Rahmatullah fired from his Klashnikov which also hit to Dilawar, accused Shoukat Ali and Qudratullah fired from their respective weapons UPON Bakhtiar Ahmed which hit to him, father of the complainant. Both fell down after sustaining the firearm injuries. Regarding remaining accused, it is alleged that they made firing in the air and went away. Complainant found that his uncle Dilawar and father Bakhtiar Ahmed had received firearm injuries at their abdomens and were bleeding. The complainant party took both the injured persons to Civil Hospital, Jacobabad from where both injured persons were shifted to Larkana for further treatment where both injured persons succumbed to their injuries. Complainant brought dead bodies from Larkana to Civil Hospital Jacobabad. Postmortem examinations were conducted. Thereafter complainant went to Police Station and lodged FIR against above named accused persons.

3. 161 Cr. P.C statements of P.Ws Muneer Ahmed and Sheeraz were recorded on 30.5.2012 in which along with other accused persons name of applicant/accused was disclosed. During investigation accused Irfan was arrested. On the conclusion of investigation challan was submitted against accused in which present applicant was shown as absconder. Applicant/accused applied for bail before the learned Sessions Judge, Jacobabad. Bail application of applicant was rejected vide order dated 25.9.2012 thereafter applicant/accused approached to this Court for similar relief.

4. Mr. Asif Ali Abdul Razak Soomro, learned counsel for the applicant contended that name of applicant/accused did not transpire in the FIR. No active role has been assigned to applicant/accused mentioned in the FIR, there was delay of nine hours in lodging the FIR for which no plausible explanation has been furnished. Medical evidence is contradictory to the ocular evidence, with regard to the number of shots attributed to the accused nominated in the FIR.
Abscondence of applicant was for a short period and it has been explained. There is recorded enmity between the parties, after arrest of the accused no identification parade was held. Common intention of the accused is yet to be determined at trial. In support of his contentions, he has relied on the case of Qamar v. State PLD 2012 SC 222, Attaullah and 3 others v. State 1999 SCMR 1320, Muhammad Sadiq & another v. State 1996 SCMR 1654, Amanullah Shah v. State PLD 1996 SC 241, Muhammad v. State 1998 SCMR 454 and Ikram-ul-Haq v. Naved Sabir 2012 SCMR 1273.

5. Mr. Ali Raza Pathan, State counsel conceded to the contentions raised by learned counsel for the applicant and recorded no objection to the grant of bail to the applicant/accused. However, Mr. Amanullah Malik, learned counsel for the complainant vehemently opposed the application. He argued that name of applicant/accused has been disclosed by PWs in their 161, Cr.P.C statements. Applicant had shared common intention. Ocular evidence is corroborated by medical evidence. Applicant had absconded away after commission of offence. He has further submitted that alleged offence is punishable for death or imprisonment for life and applicant does not qualify for the grant of bail. In support of his contentions he has placed reliance on the case of Ansar Mehmood v. Allah Bux 2005 YLR 34, Umar Khitab v. State 2008 P.Cr.L.J 1389, Shamraiz Akhtar v. State 2009 P.Cr.L.J 361, Umar Hayat v. State 2009 P.Cr.L.J 1058.

6. I have carefully heard learned counsel for the parties and perused the relevant record. I have come to the conclusion that prima facie applicant is entitled for grant of bail for the reasons that name of applicant did not transpire in the FIR, even in 161 Cr.P.C statements of P.Ws, no injuries have allegedly been caused by applicant to deceased. No identification parade after arrest of applicant was held in the case. Sharing of common intention of applicant is yet to be determined after recording of evidence at trial. Mere alleged abscondence for a short period would not be sufficient to disentitle the applicant from the concession of bail because even otherwise applicant is entitled for grant of bail. Liberty of an individual is precious and there should always be an all round effort on the part of law Courts to protect such liberties of individuals but this protection can be made available to the deserving ones only. It has also been argued that there is recorded enmity between the parties and all the male family members have been involved, therefore, in the peculiar circumstances of the case false implication of the applicant cannot be ruled out and benefit of doubt can also be extended to the applicant even at bail stage. Case law relied upon by learned advocate for complainant is distinguishable from circumstances of this case. In the case of Attaullah and 3 others (supra), relied by learned counsel for the applicant, the hon’ble Supreme Court of Pakistan has been pleased to observe as under :-

“3. After hearing the learned counsel for the parties and reading the record with their assistance, we hold the view that the petitioners have rightly and correctly been admitted to bail by the learned trial Court inasmuch as no injuries have allegedly been caused by them to the deceased. Be that as it may, we are inclined to restore the abovenoted order passed by the Additional Sessions Judge, whereby the petitioners have been admitted to bail. The petitioners shall, nevertheless, submit fresh bail bonds in the sum of Rs.2,00,000 (Rupees two lac) with two sureties each in the like amount to the satisfaction of trial Judge.

4. This order as well as the orders passed by the High Court and the trial Court shall not, at all, be deemed to influence the trial against the accused in any manner whatsoever. With these observations, this petition is converted into appeal and allowed.

In the case of Qamar (Supra) hon’ble Supreme Court of Pakistan has been pleased to observe as under:-

“4. It has vehemently been argued by the learned Additional Prosecutor-General, Punjab appearing for the State that the petitioner had remained a Proclaimed Offender for a period of about four years and, thus, he is not entitled to any indulgence in the matter of bail. We have, however, not felt persuaded to agree with the learned Additional Prosecutor-General in this regard. It has already been held by this Court in the case of Ibrahim v. Hayat Gul and others (1985 SCMR 382) and Muhammad Sadiq v. Sadiq and others (PLD 1985 SC 182) that in a case calling for further enquiry into the guilt of an accused person bail is to be allowed to him as of right and such right cannot be refused to him merely on account of his alleged abscondance which is a factor relevant only to propriety.

5. For what has been discussed above this petition is converted into an appeal and the same is allowed and, consequently, the petitioner is admitted to bail subject to furnishing bail bond in the sum of Rs.1,00,000 (Rupees one hundred thousand only) with two sureties each in the like amount to the satisfaction of the learned trial Court.”

7. For my above stated reasons and while respectfully relying upon the above citied authorities I have no hesitation to hold that prima facie a case against applicant/accused calls for further enquiry as contemplated under subsection (2) of Section 497, Cr.P.C. Concession of bail is extended to the applicant subject to furnishing solvent surety in the sum of Rs.200,000 (Rupees Two hundred thousand only) and P.R bond in the like amount to the satisfaction of the trial Court.

8. Needless to observe that the observations made hereinabove are tentative in nature and the trial Court shall not be influenced by such observations while passing final judgment.

Judge

Abid Kazi/**