ORDER SHEET
IN THE HIGH COURT OF SINDH, CIRCUIT COURT, LARKANA
Crl. Bail Appln. No.S-295 of 2012
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DATE OF HEARING |
ORDER WITH SIGNATURE OF HON’BLE JUDGE |
27.2.2013.
1. For orders on office objection.
2. For Hearing.
Mr. Habibullah G. Ghouri, advocate for the applicant.
Mr. Abdul Rasheed Soomro, State Counsel, alongwith SIP
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The applicant has filed this bail application in Crime No.59/2011, registered at P.S Mouladad, for offence under Sections 460 and 337-H(2), P.P.C.
2/- The brief facts of the prosecution case are that on 28.11.2011 complainant Abdul Razak lodged F.I.R, stating therein that he alongwith his brother Abdul Fatah and relatives Rehmatullah and Soomar use to reside in one and same house and they owned buffaloes. It was alleged in the F.I.R that on 25.11.2011, the complainant party after having dinner and tethering the cattle in the courtyard of the house went to sleep. At about 1200 hours of night they woke up on the barking of dogs and saw and identified four culprits, namely, Shabir Ahmed son of Muhammad Sallah, armed with Kalashnikov, Imran son of Muhammad Amin, armed with T.T. Pistol, Aslam son of unknown, armed with gun, all by caste Bhatti and one unknown accused, who would be identified if seen again, having gun in his hand. The accused persons were untethering the buffaloes, the complainant party raised cries as 'thief', 'thief' and gave 'hakals', on which accused Shabir Bhatti fired with his Kalashnikov straight at Abdul Fattah, which hit him and he fell down on the ground; then accused went away by leaving the buffaloes and making aerial firing. After that, the complainant took injured Abdul Fattah and went to P.S, obtained letter and then went to Chandka Medical College Hospital, Larkana, but Abdul Fattah died of the injuries. The complainant consequently lodged F.I.R.
3/- It is contended by the learned Counsel for the applicant that no role has been prescribed in the F.I.R as far as the present applicant is concerned and there is a delay of 3 days in lodging the F.I.R. No overt act was ascribed to him and the trial Court wrongly concluded that the applicant was responsible in terms of vicarious liability, since the liability could only be considered after conclusion of trial. Learned Counsel submits that he cannot disclose his defence at the bail stage, therefore, he has not stated as to on what account the applicant has been involved in the instant F.I.R. Learned Counsel submits that in terms of the order of the Sessions Court, whereby bail was declined to the applicant, it was only observed that the mashirnama of place of occurrence supported the version of the complainant with regard to the house trespass at night and that four empties were recovered from the place of occurrence. It is also contended by the learned Counsel for the applicant that the delay in lodging the F.I.R has not been satisfactorily explained as it took him 3 days to lodge the F.I.R, though it appears from the perusal of the F.I.R that after the incident they went to the police station for receiving letter for first aid treatment. Apart from this, no plausible explanation is provided to this delayed F.I.R.
4/- Conversely, the learned State Counsel submits that the question of vicarious liability is available in terms of Section 460, P.P.C, which provides that every person guilty of such lurking house-trespass by night or house-breaking by night, shall be punished with imprisonment for life or with imprisonment of either description for a terms which may extend to ten years and shall also be liable to the same punishment for committing qatl or causing hurt or attempting to cause qatl or hurt as is specified in Chapter XVI of the Pakistan Penal Code, 1860. He submits that the question of vicarious liability under Section 302, P.P.C is distinct from the vicarious liability in terms of Section 460, P.P.C. He submits that the applicant was nominated in the F.I.R and a role has been ascribed to him. Learned State Counsel relied upon the case of Ayaz Ali v. The State, reported in 2001 P.Cr.L J 2016, in terms whereof it is held that the provisions contained in Section 460, P.P.C were in consonance with "Maqasid-ul-Shariah", out of which two were attracted in the case in which fundamental right of the sanctity of the house, protection of the property and protection of life had been violated. Every accused jointly concerned with committing lurking house-trespass by night or house-breaking by night was liable by way of vicarious liability for punishment with imprisonment for life or even for committing murder, although each and every person committing lurking house-trespass by night or house-breaking by night had not participated in commission of murder or hurt committed by co-accused.
5/- On the other hand, learned Counsel for the applicant has relied upon the case of (i) Mumtaz Hussain v. The State, reported in 1996 SCMR 1125, wherein it is observed that despite being allegedly armed with deadly weapons like rifle, gun and hatchet accused had only caused simple blunt injuries to some of the prosecution witnesses using the wrong side of their weapons. Question which was involved was whether the accused in such circumstances shared common intention with co-accused needed further enquiry.
6/- Similarly, learned Counsel also relied upon the case of (ii)Muhammad Sadiq v. The State, 1996 SCMR 1654, in terms whereof bail was granted to the accused, who was alleged to have kept on firing and raising Lalkara at the time of occurrence. Although they were armed with a pistol and rifle, yet they did not cause any injury to the complainant party.
7/- Learned Counsel further relied upon the case of (iii) Attaullah v. The State, reported in 1999 SCMR 1320, in terms whereof accused were granted bail who were not alleged to have caused any injury to the deceased and the order of the High Court canceling bail to the accused was set aside and that of the Sessions Court was upheld.
8/- Lastly, learned Counsel for the applicant has relied upon the case of (iv) Faraz Akram v. The State, reported in 1999 SCMR 1360, in terms whereof it was observed that no overt act was ascribed to the accused except ineffective firing which also stood disproved because no empty was recovered from the spot. Fatal shot was attributed to co-accused and the question of vicarious liability of accused could be determined at the trial.
9/- I have heard the learned Counsel and perused the record.
10/- Dealing with the case in hand, in the light of these case laws it is a fact that there is a considerable delay in lodging the F.I.R i.e., 3 days despite the fact that victim's brother went to police station to obtain the letter. In addition, perusal of the F.I.R shows that there is hardly any role prescribed to the applicant and entire accusation was made for Bashir Bhatti who caused straight fire from his Kalashnikov which hit the deceased on his back and went through. However, nothing was attributed to the applicant and no role was assigned to him. As far as the case of vicarious liability is concerned, no doubt Section 460, P.P.C is quite different and distinct from Section 302, P.P.C, however, it is yet to be determined that the applicant was involved as it has become a case of further enquiry on account of delay in lodging the F.I.R. These views are also fortified by one of the judgments referred above i.e., case of Faraz Akram, in terms whereof it was observed that the vicarious liability could be determined at the trial and not at this stage, where there is inordinate delay in lodging the F.I.R.
11/- In view of such facts and circumstances, it has become a case of further enquiry and accordingly I grant bail to the applicant upon his furnishing surety in the sum of Rs.300,000/- (rupees three hundred thousand) and P.R bond in the like amount to the satisfaction of trial Court.
JUDGE