ORDER SHEET

IN THE HIGH COURT OF SINDH, BENCH AT SUKKUR

Cr. Bail Application No. S-267 of 2020

Applicant : Hamadullah son of Muhammad Pathan

Through Mr. Aftab Hussain Shar,

Advocate

Complainant : Raja son of Allah Bachayo

Through Mr. Muhammad Juman Sahito,

Advocate

Respondent : The State

Through Mr. A. Rehman Kolachi, APG

Date of hearing : 21.07.2020

Date of Order : 21.07.2020

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O R D E R

ADNAN-UL-KARIM MEMON, J: Through this application, the applicant seeks post-arrest bail in FIR No.92/2019, registered at P.S. B-Section, Khairpur, for offences punishable under Section 302, 404, 34 PPC. His earlier bail plea was declined by Additional Sessions Judge-II, Khairpur, vide order dated 07.05.2020.

2. Precisely the facts of the case as averred in the FIR are that on 17.05.2019 at 16:30 hours, the applicant shared his common intention with main accused Zeeshan Jatoi, who caused fatal blow to deceased Rashid Ali, resulting, his death at the spot, such F.I.R of the incident was registered on 17.5.2019.

3. It is contended by the learned counsel, for the applicant that in this case, a specific part of infliction of hatchet blow is attributed to co-accused Zeeshan Jatoi, the applicant is only alleged to have caught hold the deceased along with other co‑accused by arms. It is further urged by the learned counsel that it is yet to be decided that if the applicant caught hold the deceased along with the principal accused for infliction of hatchet blow and it is yet to be determined about sharing the common intention with main accused. It is further urged by the learned counsel that the enmity is admitted in the F.I.R. over certain affairs and there is possibility of his false implication in the said F.I.R; that the applicant is innocent and has falsely been implicated in this case; that there is inordinate delay of 05 days in lodging of FIR and no plausible reason has been explained, which shows that FIR has been lodged with consultation and due deliberation; that nothing has been recovered from the possession of the Applicant. He lastly prayed for admitting the applicant on post arrest bail.

4. Conversely, learned Deputy Prosecutor General assisted by the learned Counsel representing the Complainant, vehemently opposed the bail application on the premise that on the relevant date and time, the present applicant along with co-accused Zeeshan while sharing common intention to commit murder of the brother of complainant namely Rashid Ali came at the place of incident and the applicant caught hold of deceased Rashid Ali, while co-accused Zeeshan Jatoi committed his murder by causing hatchet below on his head; that the name of the applicant with such role is appearing in the FIR; that abetting the commission of an offence is serious matter as the person abetting the commission of an offence is liable to the same punishment which is prescribed for person committing the same; that in such-like cases, the law permits grant of bail only on satisfaction of the conditions laid down in subsection (2) of section 497 of the Cr.P.C: Thus, nothing exists on record which could hold that the case of the applicant was one of further inquiry; that the principle of vicarious liability was attracted in the present case; that all the prosecution witnesses have fully implicated the applicant with the offence he is charged; that the medical evidence is consistent with ocular account and sufficient material is available on record to connect the applicant with the offence, therefore, he prayed for rejection of bail application. In support of his contention he relied upon the case of Gul Bahar and another vs. The State (2002 P. Cr. L J) and the case of Haji Punhal vs. The State (PLD 2002 Karachi 99).

5. I have heard learned Counsel for the applicant and learned Deputy Prosecutor General assisted by learned Counsel for the complainant and perused the material available on record and case law cited at Bar.

6. Tentative assessment of record reflects the following aspect of the case:

i) Prima-facie, enmity between the parties is admitted in the FIR over certain affairs;

ii) The applicant has only been charged with facilitating the

co-accused;

iii) No injury was attributed to the applicant;

iv) There is delay of five (05) days in lodging of the FIR

v) No recovery from the Applicant;

vi) Prima-facie, chemical report is still awaited inspite of

considerable time;

7. It is quite clear from the F.I.R. that applicant was alleged to have held the deceased when main accused Zeeshan Jatoi hit the deceased on his head, is therefore, charged with facilitating the murder of the deceased, prima-facie no injury was attributed to the applicant, during the alleged occurrence, which factum requires further enquiry, and the applicant is entitled to bail. On the similar principle the Honorable Supreme Court in case of Shahid v. The State (1994 SCMR 393) bail concession was extended to accused who caught hold of the deceased when his co‑accused was inflicting dagger blow to the deceased. It is well settled law that at bail stage deeper appreciation of evidence cannot be gone into but a bird eye view is to be taken to available record before the Court to satisfy prima facie, whether accused are connected with commission of offence or not.

8. For what has been observed above, I am satisfied that the case of the Applicant requires further inquiry, attracting the provision of section 497(2), Cr.P.C. and therefore the bail application is accepted and the Applicant is admitted to bail subject to furnishing solvent surety in the sum of Rs.3, 00,000/- (Rupees Three Lac) and PR Bond in the like amount, to the satisfaction of the trial Court.

9. Needless to mention here that any observation if any in this order is tentative in nature and shall not affect the merits of the case.

10. Before parting with the order it is made clear that it is a murder case, therefore, the trial Court is directed to proceed the case expeditiously and decide the same as per law within the reasonable time. It is also made clear that in case during proceeding if Applicant misuses the bail, then trial Court would be competent to cancel the bail of the Applicant after due notice to him.

JUDGE