ORDER SHEET

IN THE HIGH COURT OF SINDH, CIRCUIT COURT, LARKANA.

Cr.B.A No.103  of 2009.

Date                     Order with signature of judge.

          1.       For orders on M.A No.295/2009.

          2.       For hearing.                                     

12.3.2008.

Mr. Mazhar Ali Taj Abro, advocate for the applicant.

Mr. Mohammad Akram Shaikh, advocate for the State.

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                    The applicant Mohammad Usman  has filed this bail application against the impugned order dated 13.2.2008 passed by the learned 1^st  Additional   Sessions Judge, Dadu whereby  his bail application   was declined  in Crime No.13/2005, P.S Hatri Ghulam Shah  U/S 302, 148, 149 PPC Q.D.O.

                    The   allegation levelled against the  present  applicant Muhammad Usman  are that on 20.12.2005  at about 10.00 hours   he alongwith 13 others duly armed with  gun   entered into the house of complainant  and then he duly armed with K.K alongwith co-accused Imam Bux  untied  the buffalo of the applicant  and tried to take away it  when     Ghulam Nabi alias Mohammad Nawaz Jatoi  cousin of complainant  prevented the accused on which  co-accused Muharram alias Mohammad Nawaz  caused straight fire  at him with intention to  kill   which hit him who fell down raising scream.  Then all the accused made their escape good.

                    Learned  advocate   for the applicant/accused argued  that the applicant/accused  has been falsely  implicated in the present case due to enmity;  that after due deliberation and consultation  the FIR was lodged with delay of one day for which no satisfactory explanation has been furnished; no overt act   has been attributed to the applicant/accused  though he   was allegedly    armed  with  K.K  but did not use   the same.  He further  argued   that there is  nothing  on the  record  that the applicant/accused used his K.K.  He further  argued  that the applicant/accused  alongwith co-accused  Imam Bux  untied  buffalo  and tried to take it away at the time of  incident.   He argued that  absence of overt act   though being armed with   K.K is not  sufficient to hold  him guilty of vicarious liability and leave a room  for further inquiry.  No incriminating   weapon  has  been secured from the possession of the applicant/accused;    all the eye witnesses   are  close relatives/cousins of the complainant.  The applicant/accused   is neither  desperate, dangerous   or hardened criminal or previously convicted.

                   Learned counsel has relied upon the  following case laws:

1. Waris and 2 others v. The State (2000 P.Cr.L.J 642).

2. Yaroo v. The Sate (2004 SCMR 864).

3. Shahid v. The State (1994 SCMR 393).

4. Attaullah and 3  others v. The  State (1999SCMR 1320).

5. Abdul Ghani and others v.The State (PLJ1994Cr.C.[Karachi] 521).

                    Learned State counsel  strenuously  opposed   this bail application on the ground that all the 14 accused  who were  armed with deadly weapons  entered into  cattle pond of Shah Mohammad Khuhro  who has 15 buffaloes which were tied there.   On 20.12.2005 10.00  hours in the night entered into cattle pond  with intention to commit theft all the buffaloes; at that time  accused Usman and Imam  Bux  Jatoi tried to untie   the buffaloes  when cousin of the complainant  namely  Ghulam Nabi alias Mohammad Nawaz Jatoi restrained  the accused  not to  do  that.   Accused  Muharam  opened  fire  at Jabbar Jatoi which hit Ghulam  Nabi cousin of the complainant who fell down on the earth.  After  murder of   Ghulam   Nabi,  Then all the accused tried to escape  from the place of wardat with  intention to go  away.

                    The prosecution   witnesses   have fully supported the version of the complainant in their statements and they have clearly  mentioned that the applicant/accused  Mohammad Usman   was also with  the other   co-accused  and   applicant Usman was armed with K.K.

                    Learned counsel for the applicant/accused states   that no specific  role has been assigned to the applicant whereas its  is evident    from the record that in the night  hours he came  alongwith 13 other  accused  who were also armed with guns and K.K and  came there  through houses  to the cattle pond   of the complainant party where 15 buffaloes   were available and   intention of the accused was to commit  theft of these buffaloes in the night hours.  The buffaloes were tethered  in killas.  It is also stated that no recovery  was effected from the applicant/accused.  The perusal of the case  reveals   that after committing murder of  Ghulam Nabi all the 14 accused   left their houses and went to unknown place for 2 and half years.   Challan   was  also submitted  U/S 512 Cr.P.C  before trial Court  therefore, no recovery  was effected from the applicant. Since  the accused remained absconder for 2 and half years and also could not voluntarily  appear  before the learned trial   therefore, after completing  all formalities  by the trial Court,   the applicant/accused  and other co-accused were  declared proclaimed offender.   The applicant   was subsequently, arrested by the police on 1.6.2008.  In the village area,   the   theft of  goats and buffaloes  is routine  crime and criminals  commit  these  offences  after sunset and in the night   and they commit these offences in the shape  of gangs,  similarly   in present  case  14 accused armed with deadly weapons  entered into   cattle  pond of the complainant party    and tried to untie  the  buffaloes but  during   committing  the offence  complainant  and others restrained  them  and one  of the complainant party  namely Ghulam  Nabi sustained firearm injury and died on the spot and after committing    the murder accused ran away  from the place of  incident because  they were apprehending    that  there will be exchange of  fire  and they can be  killed  at the spot therefore, in order to save themselves they ran away from the spot.  Moreover  the applicant/accused  is proclaimed  offender.  During query  advocate  for the applicant   informed the Court   that  the applicant/accused  is   involved  in another criminal case. The accused has been recently   arrested after period  of 2 and half  years  on 1.6.2009  by the police.   He  has not voluntarily  appeared before any Court of law for the pre arrest bail.   Neither  he has surrendered himself before any  Court  nor he has applied for his  bail before arrest.  Not only  this  but he remained absconder   alongwith  other 13 co-accused  named above who are still absconders.

           Since accused is involved in two murder cases and so also  remained fugitive  from the law  in same cases and had made lives of   many other people miserable,   applicant/accused failed to point out any legal infirmity  in  order of learned lower Court  which  could be benefited to accused  and does not warrant interference by High Court.  Bail is declined to the applicant/accused.   The citation produced by the  learned counsel for the applicant/accused  are not applicable under the circumstances of the case in hand which are in respect of  the offence  of theft committed in the premises of the cattle pond during night hours.  The accused in furtherance of common intention have trespassed  thereafter incident of murder took place inside the cattle pond.      In the case of Shaukat Ali alias Shoka v. The State  (2004 SCMR 1068)   wherein accused was  an ilaqa  councilor  but he depended on ransom money for his living   and had made lives of may others miserable  and he was declared  fugitive from law in the case.  Bail was declined by the honourable Supreme Court of Pakistan.

                   However,   the observations  made hereinabove  are tentative in nature for the purpose of only disposal of bail application and may not influence the mind of trial Court which is free  to appraise the evidence strictly according to merits of the case.

          For the above reasons, this bail application was dismissed by  short order dated 12.3.2009.

JUDGE