IN THE HIGH COURT OF SINDH CIRCUIT COURT,

LARKANA.

                                               

 Crl. Bail Appln. No. S- 237 of 2021.

 

Applicant(s):             Ghazi, Habibullah and Ramzan, through Mr. Muhammad Afzal Jagirani, Advocate.

 

The State:                  Through, Mr. Muhammad Noonari, DPG.

 

Complainant:                        Muhammad Pariyal in person.

 

Date of hearing:        19.07.2021.

Date of order:           26.07.2021.

 

O R D E R

 

Adnan-ul-Karim Memon, J:- Impugned herein is the order dated 24.5.2021, whereby post-arrest bail was refused to the applicants by the learned the Sessions Judge Shikarpur in F.I.R No.08 dated 04.05.2021, offense under sections 324,114,147,148,149, 337-H (2), 337-A(i) and 337-F(i), P.P.C. registered at P.S. Sultan-Kot, District Shikarpur. They are now asking for post-arrest bail in the aforesaid crime.

 

2.       It is contended by learned counsel for the applicants that the applicantsare innocent and have not committed the alleged offense but due to old enmity between the parties they have been roped in this case. He added that as per FIR the applicants-accused took no active part in the commission of alleged offense, hence determination of vicarious liability and sharing common intention by the applicants-accused is yet to be determined at the time of trial. He further argued that all the witnesses are interested, set up, and inimical towards the applicants-accused and no independent person has been cited as a witness. He further submits that there is the only allegation against the applicant-accused Ghazi that at the time of the incident he instigated to co-accuse to commit murder of complainant party, whereas applicants Habibullah and Ramzan (who are shown as unknown in F.I.R) have been assigned only role of making an aerial firing. According to him, they did not act in the commission of the offense.

 

3.       Learned DPG has vehemently opposed the bail of applicants-accused on the ground that applicants-accused are specifically involved in this crime and during the incident the applicant-accused Ghazi had instigated to other accused persons for murdering the complainant party, while rest of applicants have also participated in the commission of alleged offense by making an aerial firing. He however admits that names of these two applicants are not mentioned in the F.I.R.

 

4.       The accusation against the applicants is that on 04.5.2021 applicant Ghazi instigated other accused to kill Muhammad Pariyal and others and on his instigation the principal accused Abdul Ghaffar fired upon Ali Gul on his left leg, co-accused Koural caused lathi blow to complainant on his head, while co-accused Niaz Ali caused hatchet blow to complainant, such report of the incident was made to Police Station Sultan-Kot to the above effect, their earlier bail application was rejected by the learned Sessions Judge Shikarpur vide order dated 24.5.2021 on the ground that name of the applicant Ghazi Katohar appeared in the aforesaid crime with the specific role of instigation however the names of applicants Habibullah and Ramzan were given in the further statement of the complainant.

 

5.       After hearing the learned counsel for the applicants and learned Deputy Prosecutor General at length and perusal of available record with their assistance, it has been observed that prima-facie, there is no allegation against all the applicants-accused of causing injury on the person of any member of complainant party. Applicant Ghazi is alleged to have instigated his accomplices to cause injuries on the complainant and witnesses, whereas rest of applicants are alleged to have made an aerial firing after the incident was over. 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 applicants case within the purview of subsection (2) of section 497 of the Code of Criminal Procedure 1898.

 

6.       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.

 

7.       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.

 

8.       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.

 

9.       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.

 

10.     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."

 

11.     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.

 

12.     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.

 

13.     For the foregoing, the instant bail Application is accepted. Applicants are enlarged on bail in the instant FIR subject to their furnishing bail bonds in the sum of Rs.50, 000/- (Rupees Fifty thousand only) each with P.R Bond in the like amount to the satisfaction of the trial Court.

 

14.     Needless to mention here that the observation hereinabove is tentative and wouldn't affect the merits of the case at the time of trial.

 

 

 

                                                        JUDGE