ORDER SHEET

IN THE HIGH COURT OF SINDH, CIRCUIT COURT, HYDERABAD

CR. B.A.NO.S-617 OF 2012

DATE                         ORDER WITH SIGNATURE OF JUDGE

22.10.2012.

            Mr. Ishrat Ali Lohar, Advocate for applicant.

            Mr. Shahzado Saleem, A.P.G. for the State.

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SALAHUDDIN PANHWAR,J-Applicant Shah Nawaz @ Shano seeks post arrest bail in crime No.06/12 of P.S. Umerkot for offences under section 302, 324, 504,337-F(iii) and 34, PPC.

2.         Facts, leading to this application are that on 16.1.2012, complainant along with his cousin Gunesh and Chettan was going to attend a marriage ceremony, when they reached near village Khano Ranger, they were intercepted by accused  Sajjid Ali, having Klashnikov rifle; accused Kandero having pistol and one unknown person having a lathi. Accused Sajjid abused Chettan and  warned  that they will not spare him, thereafter accused Sajjid caused straight fire shot upon Gunesh, which hit him on his abdomen and same accused also caused second straight fire shot upon Chettan, which also hit him on his left arm and thereafter accused persons escaped away. Injured Gunesh succumbed to injuries and such FIR was registered.

3.         Counsel for the applicant has inter alia contended that name of applicant does not surfaced in FIR; merely his presence at the time of occurrence is alleged; name of applicant is disclosed by one witness in his statement, same is belatedly  by ten days ; during re-investigation applicant was declared innocent.

4.         Learned A.P.G. for the State did not controvert the factual position, however, he opposed the bail application on the ground that this is murder case and witnesses have implicated the present applicant.

5.         Heard counsel and perused the record.

6.         Admittedly, applicant’s name does not transpires  in the  FIR; P.W. Chettan in his statement under section 161 Cr.P.C,  recorded after ten days of incident, has implicated the applicant that at the time of incident the applicant, having lathi, was available there but no specific role of applicant is alleged even in said belated statement of witness, the circumstances further revealed that  it was only Sajid , who had fired the fatal shot upon deceased ,thus, vicarious liability in present case can be determined at the stage of trial  and in similar circumstances there are series of decisions in which honourable Supreme Court has remained in lenient view, to grant the bail, reference can be made from case of Attaullah and 3 others v. the state and another, reported in 1999 SCMR 1320,  ………….; it is also authoritative proposition of law that  bail cannot be withheld as conviction, therefore, I am of the considered view that the applicant’s case also falls within the said limitations defined in earlier precedents.

7.         Keeping in view the giving circumstances the applicant has succeeded to make out his case under sub section (2) of Section 497, Cr.P.C. whereby he is entitled for post arrest bail.

8.         By short order dated 22.10.2012 applicant was granted bail and these are the details reasons thereof. The observations made hereinabove are tentative in nature and will not prejudice the merits of the case.

                                                                                                                        JUDGE.

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