IN THE HIGH COURT OF SINDH CIRCUIT COURT,
LARKANA.
Crl. Bail Appln. No. S- 184 of 2021.
Applicant: Bhano Khan Hattarthrough his Advocate Mr. Sher Ali Chandio.
The State: Through Muhammad Noonari, DPG.
Date of hearing: 19.07.2021.
Date of order: 26.07.2021.
O R D E R
Adnan-ul-Karim Memon, J: -The applicant Bhano Khan Hattar seeks bail after arrest in FIR No.07 dated 31.01.2021, offenses under sections 302,504, 34, 109, P.P.C., registered at Police Station Shah Panjo Sultan, District Dadu. His earlier bail application No.374 of 2021 was rejected by the learned 1stAdditional Sessions Judge, Mehar, vide order dated 23.4.2021, on the ground that he was/is nominated in the aforesaid crime with the specific role of being armed with a gun, and aimed upon the complainant party to keep them tight-lipped. However, the learned Additional Sessions Judge was kind enough to grant post-arrest bail to co-accused Meer Muhammad vide order dated 12.3.2021 for certain reasons.
2. Learned counsel for the applicant has contended that no role has been assigned to the applicant in the commission of the alleged crime. He has also contended that no recovery of the alleged gun was made from the applicant. That, applicant has not been assigned any role in causing injury to any person. Learned counsel stated that the applicant is entitled to a grant of bail, as the case is of further inquiry.
3. After hearing the learned counsel for the applicant and learned Deputy Prosecutor General at some length and perused the available record with their assistance, I have noticed that the prime allegations against the applicant are that on 30-01-2021 at 1100 hours, he along with his accomplices aimed their weapons at the complainant and in the meanwhile, the main accused Pervaiz made straight fires upon Abdul Hameed brother of complainant, who succumbed the injuries and died. Such report of the incident was made to the Shah Panjo Police Station on the second day, with the accusation that the nominated accused had committed the murder of his brother on the instigation of co-accused accused Meer and MisriHattar.
4. Prima-facie, the applicant has not been attributed any overt act during the occurrence except the role of armed with a gun. In the circumstances of the case, it is for the learned trial Court to determine, after recording evidence pro and contra, whether the applicant is vicariously liable for the acts of his co-accused. F.I.R and other details of the case squarely bring the applicant's case within the purview of subsection (2) of section 497 of the Code of Criminal Procedure 1898. Besides above, the applicant is behind the bars since his arrest i.e. 05.02.2021,keeping in view the facts and circumstances narrated above and law on the subject, I am of the considered view that the case of the applicant is of further inquiry fully covered by section 497(2) Cr. P.C entitling for the concession of post-arrest bail.
5. Before parting with this order, it is important to note that the Honorable Supreme Court in its recent pronouncement has held that the courts below have not been exercising their discretion while declining bail to the accused, under subsection (1) of Section 497 Cr. P.C, under the principle of law enunciated by the Honorable Supreme Court regarding grant of bail in offenses not falling within the prohibitory clause of that subsection. It is further held that the learned courts below simply relied, for declining bail, on the incriminating material available on the record to connect the accused with the commission of the offenses alleged. Though it is well-settled law that if the offenses alleged against the accused do not fall within the prohibitory clause of subsection (1) of Section 497 Cr. P.C and thus attract the principle that grant of bail in such offenses is a rule and refusal an exception;and, as authoritatively enunciated by the Honorable Supreme Court in its several cases.
6. Primarily, the main purpose of keeping an under-trial accused in detention is to secure his attendance at the trial so that the trial is conducted and concluded expeditiously or to protect and safeguard the society if there is an apprehension of repetition of offense or commission of any other untoward act by the accused. Therefore, to make the case of an accused person fall under the exception to the rule of the grant of bail in offenses not covered by the prohibitory clause of Section 497(1) Cr. P.C, the prosecution has to essentially show from the material available on the record, such circumstances that may frustrate any of the said purposes, if the accused person is released on bail.
7. The basic principle in bail matters in such circumstances or such conduct of the accused person that may bring his case under the exceptions to the rule of granting bail. They include the likelihood of:
(a) his absconding to escape trial;
(b) his tampering with the prosecution evidence or influencing the prosecution witnesses to obstruct the course of justice; or
(c) his repeating the offense keeping in view his previous criminal record or the desperate manner in which he has prima facie acted in the commission of offense alleged.
8. In view of the above, it is also essential to note that a court which deals with an application for grant of bail in an offense not falling within the prohibitory clause of Section 497(1) Cr. P.C must apply its judicious mind to the facts and circumstances of the case and the conduct of the accused person, and decline to exercise the discretion of granting bail to him in such offense only when it finds any of the above-noted circumstances or some other striking circumstance that impinges on the proceedings of the trial or poses a threat or danger to the society, justifying his case within the exception to the rule, as the circumstances mentioned above are not exhaustive and the facts and circumstances of each case are to be evaluated for application of the said principle.
9. The Honorable Supreme Court has already cautioned the learned courts below in Muhammad Tanveer v. State PLD 2017 SC 733, in the following terms:
"Once this Court has held in categorical terms that grant of bail in offenses not falling within the prohibitory limb of section 497, Cr.P.C. shall be a rule and refusal shall be an exception, then the Courts of the country should follow this principle in its letter and spirit because principles of law enunciated by this Court are constitutionally binding [under Article 189] on all Courts throughout the country including the Special Tribunals and Special Courts."
10. In the present case, the learned trial Court has failed to adhere to the principle of law enunciated by the Honorable Supreme Court,as discussed supra.
11. In the light of the principles set forth by the Honorable Supreme Court in post arrest bail matters, as discussed supra, the impugned order passed by the learned trial Court is thus not sustainable under the law and liable to be reversed on the aforesaid analogy. On the aforesaid proposition, I am fortified with the decisions of Honorable Supreme Court rendered in the cases of Tariq Bashir v. State PLD 1995 SC 34; Imtiaz Ahmad v. State PLD 1997 SC 545; Subhan Khan v. State 2002 SCMR 1797; Zafar Iqbal v. Muhammad Anwar 2009 SCMR 1488.
12. Needless to mention here that the observation hereinabove is tentative and wouldn't affect the merits of the case at the time of trial.
13. For the foregoing reasons, this application is allowed. Consequently, applicant Bhano Khan Hattar is allowed bail after arrest in FIR No.7 of 2021, punishable for offenses under sections 302,504, 34, 109, P.P.C., registered at Police Station Shah Panjo Sultan, District Dadu, subject to his furnishing a bail bond in the sum of Rs.100, 000/- (Rupees one hundred thousand only), with one surety in the like amount to the satisfaction of the learned trial Court.
JUDGE