IN THE HIGH COURT OF SINDH, BENCH AT SUKKUR

Crl. Bail Application No.S-778 of 2021

Date of hearing

Order with signature of Judge

For hearing of bail application.

O R D E R.

31-01-2022.

Mr. Ali Raza Channa, advocate for the applicant.

Mr. Shabbir Ali Bozdar, advocate for the complainant.

Mr. Aftab Ahmed Shar, APG for the State.

AMJAD ALI SAHITO J., Through the instant Application, applicant/accused Abdullah Sajid Bughio seeks post arrest bail in Crime No. 295/2021, offence u/s 302, 34 PPC of PS Moro, District Naushahro Feroze. Prior to this, he filed such application, but the same was turned down by the Court of learned Additional Sessions Judge Moro vide order dated 13-11-2021, hence he filed instant Crl. Bail Application.

2. The details and particulars of the FIR are already available in the bail application and FIR, same could be gathered from the copy of FIR attached with such application, hence, needs not to reproduce the same hereunder.

3. Learned counsel for applicants submits that applicant is innocent and has falsely been implicated in this case by the complainant with mala fide intentions and ulterior motives and previous enmity over the matrimonial disputed, which is admitted by the complainant in the FIR; that there is inordinate delay of about seven hours in lodgement of the FIR for which no plausible explanation has been furnished by the complainant; applicant/accused has not caused any injury to the deceased, but mere allegation against him that he and his father Soomar Bughio caught hold the deceased Abdul Fattah from his arms and then co-accused Muhammad Ali Bughio allegedly made straight fire of pistol upon the deceased; presence of the applicant/accused at the place occurrence was not opined by the investigating officer, during investigation as he at the time of alleged incident was available at Karachi where he is doing labour, hence he was released u/s 497 Cr.P.C by the police and his name was placed in column No.II of the challan, but learned Magistrate had taken cognizance against him; that it is yet to be determined at the time of trial as to whether the applicant along with co-accused has share his common intention in the commission of offence, therefore, he pray for grant of bail to the applicant/accused. He places his reliance on cases reported as Nisar Ahmed Vs. The State (2014 SCMR 27), Malik Waheed alias Abdul Hameed Vs. The State and another (2011 SCMR 1945), Subeh Sadiq alias Saabo alias Kalu Vs. The State and others (2011 SCMR 1543), Talib Jan Vs. The State and another (2012 SCMR 265), Muhammad Faisal Vs. The State and another (2020 SCMR 971) and Samiullah, another Vs. Laiq Zada and another (2020 SCMR 1115).

4. On the other hand, learned APG for the State assisted by learned counsel for the complainant have vehemently opposed for the grant of bail to the applicant/accused on the ground that he and his father Soomar caught hold the deceased from his arms and then co-accused Muhammad Ali made straight fire upon deceased Abdul Fattah, they are equally responsible for common intention with co-accused in the commission of murder of deceased Abdul Fattah, therefore he is not entitled for the concession of bail. Learned counsel for the complainant places reliance on cases reported as Sidra Abbas Vs. The State and another (2020 SCMR 2089) and Muhammad Afzal Vs. The State (2012 SCMR 707).

5. I have heard learned counsel for the parties and have gone through the material available on record.

6. Perusal of FIR reveals that applicant Sajid and his father Soomar Bughio caught hold deceased Abdul Fattah from his arms and then main accused Muhammad Ali Bughio made straight fire of pistol upon the deceased and committed his murder, otherwise no overt act of causing any injury to deceased is assigned to him. Moreover during the investigation conducted by SDPO Shaheed Benazeerabad, it has come on record that at the time of incident, the applicant/accused Sajid Ali was not present at the place of occurrence but he was labouring at Baharia Town Karachi, therefore he and his father Soomar Bughio were released after fulfilling all the legal and codal formalities and their names were placed in column No.II of the challan, but learned Magistrate has taken cognizance against them. The post-mortem report shows that deceased has sustained a single firearm injury and no any scratch has been fined over the dead body of deceased. In the case of Qurban Ali Vs. The State (2017 SCMR 279), the Hon’ble Supreme Court of Pakistan has granted bail to the accused, who had not been attributed any overt act during the occurrence, except the role of raising “Lalkara” and further held that in such circumstances, trial Court had to determined, after recording pro and contra evidence, whether the applicants were vicariously liable for the act of their co-accused and that case was one of the further enquiry. Moreover learned counsel for the applicant pleaded malafide on the part of complainant that due to previously enmity over the matrimonial affairs, the present applicant is booked in this case. At bail stage only tentative assessment is to be made. The case has been challaned and the applicant/accused is in jail and he is no more required for further inquiry. In the unreported case of Jahanzeb Khan Vs. The State through A.G KPK and others Criminal Petition No.594/2020, the Hon’ble Supreme Court of Pakistan has held that;

“4.....Petitioner’s continue detention is not likely to improve upon investigative process, already concluded, thus, he cannot be held behind the bars as a strategy for punishment. A case for petitions’ release on bail stand made out.

7. In view of above discussion, learned counsel for the applicant/accused has made out a good case for grant of bail in the light of sub section (2) of Section 497 CrPC, hence the instant bail application is allowed, applicant/accused is admitted to bail subject to furnishing his solvent surety in the sum of Rs. 200,000/- (two lacs) and P.R bond in the like amount to satisfaction of learned trial Court. If applicant/accused misuses the concession of bail, then trial Court is at liberty to take action against him.

8. Needless to mention that the observations made hereinabove are tentative in nature and would not influence the Trial Court while deciding the case of the applicant on merits.

J U D G E

Nasim/P.A