IN THE HIGH COURT OF SINDH BENCH AT SUKKUR

Crl. Bail Application No.S-35 of 2020.

DATE OF HEARING

ORDER WITH SIGNATURE OF JUDGE

For hearing of bail application.

Date of hearing 17.04.2020.

Mr. Fida Hussain Sahito Advocate for applicant.

Mr. Khalil Ahmed Maitlo DPG for State.

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O R D E R

SHAMSUDDIN ABBASI, J:- Through instant bail application, applicant Manzoor son of Bagh Ali Thebo seeks Post-arrest bail in Crime No.56/2019 registered at Police Station, Kotdiji for offence punishable under Sections 302, 452, 114, 147, 148 PPC. Earlier his bail plea was declined by learned trial Court vide order dated 06.01.2020.

2. It is alleged in the FIR that on the instigation of present applicant co-accused Hakim caused lathi blow to deceased Mst. Dadli which hit on her head and later on she died.

3. It is contended by learned Counsel for applicant that applicant is innocent and has falsely been implicated in this case due to dispute over landed property in between the parties; that there is delay of one day delay in lodging of the FIR and no any plausible explanation has been furnished; that role of causing fatal injury is attributed to co-accused; that this Court has granted bail to co-accused Parvez while learned trial Court has also granted bail to co-accused Sarfraz alias Sharfo and the role of present applicant is on identical footings to that of co-accused hence, he is also entitled for grant of bail; that case has been challaned and applicant is no more required for further investigation. By stating so, he prayed for grant of bail. He relied upon case of Tarique Zia v. The State reported in 2003 SCMR 958 and unreported case Re-Dil Nawaz & another v. The State passed by this Court in Crl. Bail application No.S-632/2016.

4. On the other hand, learned Deputy Prosecutor General appearing for the State vehemently opposes for grant of bail on the ground that case of present applicant is on different footings to the case of co-accused Parvez and Sarfraz alias Sharfo who were admitted on bail; that active participation in the shape of role of instigation has been assigned to the present applicant and on his instigation one innocent lady has lost her life; that offence comes within the prohibitory clause of Section 497 Cr.P.C hence, applicant is not entitled for grant of bail.

5. Heard learned Counsel for the applicant and learned Deputy Prosecutor General for State and perused the record. Admittedly, there is one day delay in lodging of the FIR as incident has taken place on 04.06.2019 at 1830 hours whereas the FIR has been lodged on 05.06.2019 at 1600 hours but no plausible explanation has been furnished by the complainant for such inordinate delay and in background of murderous enmity it cannot be ruled out that FIR has been lodged after due deliberation and consultation. It is matter of record that specific role of causing lathi blow to deceased Mst. Dadli has been assigned to co-accused Hakim, whereas the role of instigation has been attributed to present applicant. This Court has granted pre-arrest bail to co-accused Parvez vide order dated 23.12.2019 whereas post-arrest bail has been granted to co-accused Sarfraz alias Sharfo by learned trial Court vide order dated 06.01.2020 who were shown present at the scene of offence duly armed with lathis. In my humble view that role of instigation and role of mere presence are not distinguishable on the ground that charge against them are similar in nature by sharing common intention/object and it is well settled proposition of law that question of vicarious liability is yet to be determined at the trial. The Honourable Supreme Court of Pakistan has held in the dictum laid down in the case of Manzoor Hussain and another v. The State reported in 2011 SCMR 902 wherein it has held that;

“It would be seen that bail cannot be refused on the basis of vicarious liability, unless it is shown through positive evidence that indeed co-accused played a role in the crime in question. This does not appear to be the case in the present matter.”

In case of Tariq Zia v. The State, reported in 2003 SCMR 958, wherein the Honourable Supreme Court of Pakistan has held that;

“The accusation against the petitioner in the FIR are that he raised only a Lalkara to the effect that the enemy had come and on that, Lalkara other accused attacked the complainant side. The contents of the FIR show that the accused was empty-handed and has not played any active/overt act in the commission of the offence. It would be for the trial Court to examine the evidence and determine the effect of the Lalkara raised by the petitioner. At this stage, we fell that prima facie, a case for grant of bail has been made out.

6. The applicant is in custody, case has been challaned and applicant is no more required for further investigation, no purpose would be served to keep him in jail for indefinite period therefore, applicant has been able to make out a case for grant of bail. Accordingly, instant bail application is allowed. The applicant/accused Manzoor Thebo is granted post-arrest bail subject to his furnishing solvent surety in the sum of Rs.300,000/- (Rupees Three lacs) and PR bond in the like amount to the satisfaction of the trial Court.

Bail application stands disposed of.

J U D G E

Ihsan