IN THE HIGH COURT OF SINDH BENCH AT SUKKUR

 

Cr. Bail Application No.S-542 of 2019

 

 

Applicants/accused:      Ali Dino S/O Ammanullah, Through Mr.Shamsuddin N Kobhar, Advocate.

 

 

Complainant:                 Ali Raza Through Mr.Shabbir Ali Bozdar, Advocate.

 

The State:                      Through Mr. Shafi Muhammad Mahar, DPG.

 

                                                                                                

Date of hearing: 14-02-2020

 

                            

O R D E R

 

Zulfiqar Ali Sangi, J: Through instant application, applicant/accused Ali Dino, seeks bail after arrest in FIR No.48/2019, registered at Police Station Khanpur Mahar, under Section 302, 147, 148 & 149 PPC. Applicant/accused applied for bail before the Additional Sessions Judge-II, Ghotki, who declined the bail vide order dated 26.09.2019, hence applicant approached this court for bail.

2.             The Facts of the prosecution case according to FIR bearing Crime No.48/2019, dated 29.07.2019 lodged by Ali Raza S/o Ali Muhammad Mahar at PS Khanpur Mahar are that the Amanullah is the uncle of complainant prior to this dispute over land enmity is going on between the parties on 21.11.2018 the son of complainant Ghulam Muhammad was murdered by Amanullah and others such case was registered as Crime No.96/2018 offence under Section 302, 147, 148 & 149 PPC at PS Khanpur Mahar against Amanullah and his sons the case is pending before Sessions Court on that Amanullah gave threats to complainant party they withdraw the case from them, if not they will murder them, on 28.07.2019 the complainant along with his father Ali Muhammad and brothers Muhammad Arif and Talib Hussain were closed the outer door and were sleeping, on 29.07.2019 in the night at about 1:00 a.m, the complainant heard knock of the door, the complaint party woke-up the brother of complainant Ali Muhammad opened the door and went out from house the complainant and his brother Muhammad Arif and Talib Hussain went behind their brother, on the light of electric bulbs they saw and identified near Bab-e-Rehmat Mosque accused Amanullah Mahar S/o Soomro, Muhammad Ali, Ahmed Ali were armed with guns, Ali Dino armed with pistol all three sons of Amanullah Mahar R/o Khanpur Mahar and two unidentified accused both were armed with lathies standing accused Ahmed Ali Mahar gave hakal and asked that they were not withdraw from the case today they will murder Ali Muhammad, the complainant party gave wasta of “Allah and Holy Prophet Peace Be Upon Him” and they in their pressure accused Ahmed Ali fired from gun for attempt to commit murder of Ali Muhammad which hit him on left side of abdomen, accused Amanullah fired from his gun to Ali Muhammad which hit him on left thigh, accused Muhammad Ali fired from his gun and Ali Muhammad which hit him on left arm Ali Muhammad raised cries and fell down thereafter all the accused ran away towards southern side the complainant party due to fear of weapons did not chase them, thereafter, the complainant and their brothers went over the dead body of their brother and saw one firearm injury on left side of stomach and exist from side of stomach through and through one firearm injury on left thigh and exist from under side one fire arm injury on right arm and blood was oozing and was dead, the complainant arranged the transport and with the help of his PWs brought the dead body at Taluka Hospital Khanpur Mahar for post mortem and after post mortem the dead body brought at his village, and after burial the dead body the complainant came at Police Station and registered the FIR that above named accused with common intention armed with weapons and lathies accused Ahmed Ali, Amanullah, Muhammad Ali and others fired from guns at Muhammad Ali and murdered him, the unidentified accused if came again before them they will identify them.

3.             Mr. Shamsuddin Kobhar, learned counsel for the applicant/accused contended that applicant is innocent and has been involved by the complainant due to enmity; that there is delay for about 16.30 hours in registration of FIR the same has not been explained; that allegation against the applicant was that he was only present at the place incident duly armed with pistol and the same has not been used by applicant; that case has been challaned and the applicant is no more required for investigation; lastly he prayed for grant of bail.

4.             Mr. Shafi Muhammad Mahar, learned Deputy Prosecutor General after hearing the contentions of counsel for the applicant raised no objection for grant of bail.

5.             Mr. Shabbir Ali Bozdar learned counsel for complainant contended that applicant was very much available at the place of incident with their respective weapon; that he facilitated the main accused those are his father and brothers for committing a heinous offence of murder; that after the arrest of  brothers of applicant in case of murder of Ghulam Muhammad his father issued threats to complainant party for withdrawal of the said case and on refusal complainant of the present that was murdered by them He further contended that if the applicant will release other witnesses of the case will be murdered and lastly he prayed that his bail application may be dismissed.

6.              I have heard the learned counsel for the parties and perused the material available on record with their able assistance.

7.             From the perusal of FIR, it transpired that applicant was armed with pistols and was available at the place of incident which was the house of complainant and facilitated the main accused who fired upon the deceased who was complainant in FIR No: 96 of 2018 registered at Police Station Khanpur Mahar for offence U/S 302, 147,148 & 149 PPC.

8.             The record reflects that bail application for bail before arrest of brothers of applicant was declined by the trial court on 05-01-2019 and thereafter their bail after arrest was also declined on 22-01-2019, the main accused who cut the neck of deceased Ghulam Muhhamad in that FIR is father of the applicant and others are brothers who are still absconders. When their bail declined by the trial court then their father the main accused issued threats to the complainant of that FIR for withdrawal of the case otherwise he will be murdered.On refusal, the complainant of the saidcase was also murdered by the same co-accused along with applicant and others who is the real father of the applicantas such instant FIR bearing Crime No.48 of 2019 U/S 302, 147, 148,149 PPC at Police Station Khanpur Mahar was registered.

9.       The Honourable Supreme Court of Pakistan declined the bail in the case even where the role for causing death has not been assigned to accused in the case of SARWARI V.THE STATE ( 1991 SCMR 289 ) and has held as under:-

2. The facts, in brief, are that the report of the incident was lodged by Habibur Rehman, Head Constable, on 22‑2‑1990 wherein he stated that an informer had disclosed that the petitioner along with others was busy in gambling. A raid was conducted by the police and they found the petitioner and others playing gambling. In order to arrest, they were encircled but all of them started running. Riaz Head Constable arrested the petitioner. The petitioner called out Gul Khan that he had been arrested and he should get him released. Thereupon Gul Khan pulled out a pistol from underneath his shirt and fired a shot at Muhammad Riaz deceased one after the other Riaz was fatally injured and the petitioner decamped.

Learned counsel for the petitioner submitted that no overt act has been attributed to the present petitioner. The petitioner had only requested Gul Khan for help, and he did not instigate him to make fire at the deceased.

Specific role has been ascribed to the petitioner. The High Court in its detailed order rejected his bail application. A review application was also moved which was also rejected. As the petitioner was apprehended by the police, he instigated his co‑accused to get him released whereupon the co‑accused Gul Khan had fired at the deceased. Prima facie it cannot, therefore, be argued that it is a case of further inquiry.

The petition has no force. The same is dismissed and leave to appeal is refused.

 

10.     In the case where the role has not been assigned against the accused and he was mere presence at the place of incident, this court dismissed the bail plea in case of IBRAHIM V. THE STATE ( 2012 YLR 983 )and same is reproduced as under:-

7. I have considered the submissions advanced by the learned counsel for the parties and perused the police file. Admittedly, the name of the applicant is mentioned in the F.I.R. though no specific role has been assigned to him, but no plausible explanation was rendered to justify the presence of the accused at the place of occurrence, which had led to a tentative view that the accused shared common intention to commit the murder of deceased. Reasonable grounds were available to believe that applicant had shared the common intention with co-accused in the commission of murder unless evidence of eye-witnesses is recorded. Further, nothing was available on record to show that complainant party had any motive or reason to falsely implicate accused in the case. Moreover, the case was at preliminary stage and evidence of none of the prosecution witnesses has been recorded. Now the police has submitted challan, as informed by learned A.P.-G. Sindh and learned counsel for the complainant, therefore  the  suggestion  made by learned A.P.-G. is quite reasonable.

8. In the circumstances, I am of the considered view that the case of the applicant does not fall within the purview of further enquiry as he has formed an unlawful assembly in furtherance of their common intention where two young innocent persons have lost their lives and as such the applicant is vicariously liable for the same.

 

11.     Honourable Supreme Court of Pakistan also declined the bail plea of accused, who was only present at the place of incident and role only was of Lalkara in the case of  CHIRAGH DIN AND OTHERS  V.THE STATE ( PLD 1967 S.C 340 )and has held as under:-

The High Court distinguished this case on the ground that the person to whom bail was granted by the Supreme Court was an old man who was shown to be suffering from illness, and his case was therefore one that fell within the exceptions specified in section 497, Cr. P. C. The distinction has been rightly drawn. In this case, Chiragh Din is 35 years old. This is no great age. He is not alleged to be sick or infirm. The precedent case is not to be read as laying down that a lalkara is never to be regarded as a sufficient overt act, if proved, to II establish abetment. That question must be decided by the trial Court on an appreciation of all the facts, including the degree of interest in the crime possessed by the person who shouted the lalkara and the part he played in the background of the affair. There are circumstances in which mere presence f at the scene of the crime is a sufficient overt act to support conviction, by the application of section 114, P. P. C. Shout in of a lalkara may, in such circumstances, have effect as a further overt act of abetment.

It is not possible, without a full appreciation of the evidence relating to the background of a crime and its actual commission. to say that proof of a person shouting a lalkara, is not enougl3 to constitute a reasonable ground for thinking that lie has been guilty of abetment of such crime. The proposition advanced by learned counsel, in the form of a rule of evidence, cannot he accepted as one of general application. The appreciation on evidence and the drawing of conclusions therefrom in relation; to all the circumstances is the function exclusively of the trial Court. It cannot be anticipated by a Superior Court dealing: with an ancillary matter, e.g., the grant of bail, pending  trial.

The petition is accordingly dismissed.

 

12.     It is a well-settled principle of law that deeper appreciation of evidence is not permissible at the stage of bail and the material is to be assessed attentively. From the tentative assessment of material, it is established that the applicant is connected with the commission of offence as the applicant is nominated in the FIR with the role that he was armed with pistol was available at the place of incident the same was the house of complainant and applicant has no explanation of such presence, all witnesses supported the case of the prosecution in their statements under section 161 Cr.P.C, the medical evidence is corroborative with ocular account, the father of the applicant and other brothers who are absconders in the present case have repeated the offence by committing the murder of the complainant of the FIR No. 96 of 2018 the deceased in the present case.

13.     From the tentative assessment of material available on record as has been discussed above the applicant is unable to make out his case for grant of bail hence the instant bail application is dismissed.

14.     Needless to mention that the observations made hereinabove are tentative in nature and shall not cause prejudice to the right of either party at trial.

 

 

                                                                             J U D G E