IN THE HIGH COURT OF SINDH BENCH AT SUKKUR

Crl. Bail Application No.S-641 of 2021

DATE OF HEARING

ORDER WITH SIGNATURE OF JUDGE

For hearing of bail application

Date of hearing 21.10.2021

Raja Shahid Hussain Solangi, Advocate for applicant.

Syed Sardar Ali Shah Deputy Prosecutor General.

Complainant Haji Mour present, in person.

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MUHAMMAD SALEEM JESSAR, J; Through instant bail application, applicant/accused Nizadmuddin son of Ghulam Hyder Solangi seeks post-arrest bail in Crime No.82/2021 Police Station, Naushehro Feroze, District Naushehro Feroze for offence punishable under Sections 302, 148, 149, 504, 337H(ii) PPC. Earlier his bail application was declined by learned I-Additional Sessions Judge/(MCTC), Naushehro Feroze vide order dated 17.08.2021.

2. The facts of the prosecution case are mentioned in the FIR attached with the memo of bail application and the same are not to be re-produced in view of the case of Mohammad Shakeel v. The State and others reported as PLD 2014 SC 458.

3. Learned Counsel for applicant contends that the applicant has falsely been involved in this case by the complainant with malafide intention and ulterior motives due to matrimonial dispute; that no specific role is attributed against present applicant except mere his presence at the wardat with Pistol and there is general allegations against him hence, it is yet to be determined by the trial Court at trial whether applicant is involved in the commission of alleged offence or not; that co-accused Deedar Ali was granted post-arrest bail while accused Waheed has been granted pre-arrest bail by the learned trial Court vide order dated 03.08.2021 hence, rule of parity is applicable to the case of present applicant; that vicarious liability is to be seen at the time of trial after recording evidence; that case has been challaned and applicant is no longer required for further investigation. By contending so, he prayed for grant of bail to the applicant. He relied upon case of Tahir Zeb and others v. The State and another (2020 SCMR 1685), Attaulah v. The State through A.G. Khyber Pakhtunkhwa and another (2020 SCMR 451), Abdul Hakeem and others v. The State (2020 YLR Note 75). Karim Bux Mari and 2 others v. The State (2020 P.Cr.LJ Note 81) and Juma Khan alias Sajid and another v. The State (2014 YLR 1019).

4. As against, Syed Sardar Ali Shah, learned Deputy Prosecutor General appearing for the State conceded for grant of bail. However, complainant Haji Mour present in person has vehemently opposed for grant of bail to the applicant on the ground that applicant and other co-accused were identified by him, their names have been transpired in the FIR with specific role; that applicant was available at spot and had participated in the alleged crime; that during investigation allegation against applicant is proved and case has been challaned; that no enmity has been shown to have false implication of applicant/accused in the commission of crime and besides he has shared common intention with co-accused and facilitated to main accused; that nothing is available on record to show that complainant party had any motive or reason to falsely implicate accused in the case; that deeper appreciation of evidence cannot be permitted at bail stage; that applicant is vicariously liable for the offence; that offence falls within the prohibitory clause of Section 497 Cr.P.C; By contending so, he prayed for rejection of bail.

5. Heard arguments of learned Counsel for the parties and perused the record. Admittedly, the dispute between applicant and complainant party is over matrimonial enmity. Even otherwise, the role attributed against present applicant is of mere presence at the place of wardat and no specific role is assigned to him. The motive alleged is that prior to the occurrence, the applicants annoyed they too restrained them to go to the near relatives and grazing of cattles infront of their houses as well hence, the occurrence. In the instant case, the fight had flared-up all of sudden and element of premeditation is yet to be determined after recording evidence whether present applicant and co-accused are vicariously liable for the act as alleged or otherwise. Indeed, co-accused namely Deedar Ali and Waheed have been granted bail by the learned trial Court and rule of parity is also applicable to the case of present applicant. Since, no active role has been assigned to the present applicant in causing death of deceased hence, on merits he has prima facie got good case for grant of bail, therefore, relying upon the dictum laid down in the cases supra,
I am of the opinion that applicant has made out a case of further inquiry within the meaning of Sub-section (2) of Section 497 Cr.P.C. The applicant is behind bars since his arrest and trial has not yet concluded. Investigation in the case was complete therefore, accused was no longer required to Police for further investigation as such the incarceration of accused/applicant would serve no useful purpose and case against him fell within the ambit of further inquiry.

6. In view of above, I am of the considered view that applicant/accused has been able to make out a case for grant of bail. Accordingly, instant bail application is allowed. The applicant/accused, namely, Nizadmuddin son of Ghulam Hyder Solangi is granted post-arrest bail subject to his furnishing solvent surety in the sum of Rs.100,000/- (Rupees One lac) and PR bond in the like amount to the satisfaction of the trial Court.

7. Needless to mention here that observation made herein above are tentative in nature and trial Court may not be influenced of the same and decide the case on its own merits as per evidence and the material made available before it.

Bail application stands disposed of in the above terms.

J U D G E

Ihsan