ORDER SHEET

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

Cr.Bail Appln. NO: 10 of 2009.

Date                            Order with signature of judge.

            1.         For orders on M.A No.22 /2009.

            2.         For Hearing.                         

30.3.2009.

                        Mr.Anwar Ali Shaikh, advocate for the applicant.

                        Mr.Muhammad Akram Shaikh, State Counsel. 

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KHADIM HUSSAIN M.SHAIKH,J.:- The applicant  has sought bail in Crime NO.43/2008 of P.S  Garhi Yasin  registered  for an offence U/S 302, 148, 149, 337-H(2),  114 PPC. The bail plea advanced  by the applicant  before the trial Court was declined vide order dated 06.11.2008.

                        Briefly the facts of the prosecution  case are that  on 22.5.2008 at 1330 hours  the complainant Ghulam Serwer Marfani  lodged F.I.R  being Crime NO.43/2008 of P.S Garhi Yasin   stating therein that  he is a contractor. The house of Altaf Marfani and accused persons is adjacent to each other.   The complainant further stated that prior to lodging of the F.I.R, Altaf came on the roof of  his house, hence  his son Ghulam Abbas asked him that  as to why he has come on the roof, hence harsh words were exchanged between  them.   On the day of the incident  he,  his son Ghulam Abbas aged about 30 years  and Ghulam Hyder, relative Siraj S/O Haji Ferozuddin had gone to   their land.    AT about 7.30 a.m    they saw and identified  the accused   namely 1.Ayaz S/O  Gul Bahar, 2.Altaf S/O Nazir Ahmed 3.Deedar, 4.Dildar both sons of Kouro, 5.Shabir S/O Gul Bahar, 6.Gul Bahar S/O Ayaz 7.Abdul Nabi S/O Deedar, all  by caste Marfani armed with K.Ks R/O Own houses near Misri Wahan Taluka Garhi Yasin and three unknown persons who were not previously known armed with  guns,  came there.   As soon as they come, accused Deedar instigated other accused not to spare Ghulam Abbas and commit his murder, on  whose instigation accused Ayaz  S/o Gul Bahar, Altaf S/O Nazir Ahmed, Deedar S/O Kouro fired from their respective weapons at    his son Ghulam Abbas,  which hit him   who fell down by raising cries.  The complainant party  raised cries  of murder-murder    on which many  people came running there and the accused seeing  them   made their escape good  towards eastern side.   Later,  the  complainant  and P.Ws  went over and saw  Ghulam Abbas who had received firearm injuries on different parts of  his body viz. on his left shoulder through and through,  on right arm,  one hole on the hand, two hoes on arm, one injury on elbow and other parts  of body  who was seriously injured.   It is further stated by the complainant that  he immediately  shifted his injured son  to Shikarpur Hospital where he was provided first aid   who was  subsequently referred to Larkana Hospital    where   he died  during treatment.  Thereafter complainant   took the dead body of his deceased son in the Ambulance  and left at Taluka Hospital Garhi Yasin where he left the above P.Ws   over the dead body and  then appeared at Police Station and lodged such F.I.R  to the above effect.

                        It is further case of the prosecution   that on the following day i.e. 23.5.2008 complainant recorded his further statement wherein  alongwith other accused he disclosed the name of present applicant  to be one of the companions  of the accused.   It is alleged  in the further statement   of complainant that the accused was armed with  gun so also the P.Ws namely Siraj and Ferozuddin  have stated  in their 161 Cr.P.C statements   recorded on the following day of  registration of the F.I.R.

                        It is  case of the prosecution that the applicant was only allegedly armed with gun but he  is  not alleged to have any fire from his gun.  He   is not  even alleged to have caused any injury either to the deceased or to any of the P.Ws.

                        Learned counsel for the applicant has mainly contended that the name of the applicant does not find  place in the F.I.R despite the fact  that the applicant  is hailing from the same village and was already known to the complainant party.  He has further argued   that the name of the applicant was taken by the complainant in his further statement recorded on the following day  i.e. 23.5.2008 after consultations and deliberations.   He has further contended that the statement U/S 161 Cr.P.C  of the prosecution witnesses  were also recorded on the following day i.e. 23.5.2008 and such delay  in recording statements  U/S 161 Cr.P.C  have not been explained by the prosecution.   He  has contended that no overt act is attributed to the present applicant excepting  his presence  on the place of incident  that too  not  in the F.I.R but in the further statement  of the complainant.  It is contended  by the learned counsel   that even  in further statement it is  alleged that, while leaving   the scene,  all the accused  had made firing in the air but this fact  stands falsified   by the  fact  that no empty cartridge  was secured from the place of incident.  It is further  contended   by  him   that no recovery  of  gun has been effected  from the applicant although  he remained in custody under the remand  for 7 days.  Therefore,  his case requires  further  inquiry.   In support  of his contentions, learned counsel for the applicant  has relied upon the following case laws:

            1,         Muhammad v. The State (1998 SCMR 454).

            2.         Faraz Akram v. The State (1999 SCMR 1360).

            3.         Hyder v. The State (1990 P.Cr.L.J 70).

            4.         Unreported authority in  Cr.B.A.No.314/2004 passed by this

Court on 17.06.2004.

                        Mr.Mohammad Akram Shaikh, learned counsel for the State,  has candidly conceded to the arguments  advanced by the learned advocate for the applicant and has raised no objection to the grant of bail to the applicant.

                        I have carefully considered the arguments  so advanced by the learned counsel for the parties and have  also gone through the police papers with the assistance  of learned State Counsel.

                        The name of the applicant  does not appear in the F.I.R and he was named by the complainant inhis further statement  on 23.5.2008. Even   no over act is attributed to the applicant in further statement  recorded by the complainant.  In the vague end of the said  statement,  it is  alleged   that   all the accused  made firing  in the air.  The applicant was  allegedly armed with gun but no empty cartridge  was secured from the place of incident.   Even no recovery  of gun has been effected from him.

                        In view of the above discussion,  I am of the considered view that the case  of applicant is covered  U/S 497(ii) Cr.P.C  which  entitles him to the concession of bail as his involvement requires  further inquiry into his guilt  and  his vicarious  liability    about  his mere presence at the place of incident could be considered and determined  during the trial.  Therefore,   bail is granted to the  applicant in the sum of Rs.200,000/= subject to furnish solvent surety   and P.R  bond in the like amount to the satisfaction of  learned trial Court.

JUDGE