IN THE HIGH COURT OF SINDH, CIRCUIT COURT
Crl. Bail Appln. No. S- 04 of 2021.
Applicant: Imam Bux Khoso, through Mrs. Rizwana Jabeen Siddiqui, Advocate.
Complainant: Ghulam Qadir, through Mr. Asif Ali Abdul Razzak Soomro, Advocate.
Respondent: The State, through Mr. Aitbar Ali Bullo, Deputy Prosecutor General.
Date of Hearing: 13.09.2021.
Date of Order: 13.09.2021.
O R D E R
Abdul Mobeen Lakho, J: Through this application, applicant Imam Bux Khoso seeks his admission to post-arrest bail in Crime No.106/2020 registered at Police Station Mehar of District Dadu, for offences punishable under Sections 302, 324, 148, 149, 114, 504 and 337-H (2) P.P.C. Earlier, bail plea of the applicant was declined by learned 1st Additional Sessions Judge, Mehar, vide order dated 14.12.2020.
The allegation against present applicant as per F.I.R lodged by complainant Ghulam Qadir Khoso on 06.5.2020 is that, he instigated rest of his co-accused for murdering complainant party and on his instigation co-accused Ghulam Hussain, Iqrar and Sobdar fired at Abdullah the brother of complainant, which hit him resulting into his death. Besides this, rest of all accused are alleged to have made firing upon complainant party which went ineffective. The accused persons are also alleged made aerial firing while leaving the spot. The motive for the incident as set-out in the F.I.R is previous murderous enmity between the parties.
Learned counsel for the applicant mainly contended that, that no any active role of making fire etc. upon deceased is assigned to applicant except instigation and ineffective/ aerial firing. Per learned counsel, in these circumstances, the question of sharing common intention vicarious liability of present applicant with co-accused would be determined at the time of trial. In support of her contentions the learned counsel relied upon 2012 P.Cr.L.J 1970, 1994 SCMR 2171; 2010 MLD 1827; 2011 YLR 1807; 2006 YLR 3206 [Karachi]; 2010 P.Cr.L.J 280 [Karachi] 2001 P.Cr.L.J 1491 [Karachi]; 2015 P.Cr.L.J 766 Lahore; 2014 P.Cr.L.J 1096 Islamabad; 2014 P.Cr.L.J 1548 (Sindh) and 2002 SCMR 1415.
Conversely, learned Advocate for the complainant opposed grant of bail to applicant-accused on the grounds that he has been nominated in the F.I.R with his name and parentage duly armed with deadly weapon with role of instigating and making aerial firing thereby facilitating the principal accused, who committed murder of an innocent person, as such he is vicariously liable for the murder of deceased.
Learned Deputy Prosecutor General appearing for the State while adopting the arguments advanced by learned Advocate for complainant also opposed grant of instant application. He however could not controvert the submissions made by learned counsel for the applicant.
Perusal of record reflects that, no doubt the applicant has been nominated in the F.I.R, but no active role of making any fire upon deceased is assigned to him; he has acted as instigator only, and alleged to have made aerial firing, while co-accused Ghulam Hussain, Iqrar and Sobdar are alleged to have made fires upon deceased resulting into his death. In these circumstances, question of common intention and vicarious liability of present applicant with co-accused would be determined at the time of trial.
The facts of the cases cited by learned counsel for applicant are very much applicable to the instant case. Perusal of above citations shows that in similar circumstances, the accused persons were extended concession of bail.
Accordingly, in view of above circumstances, the instant bail application was allowed vide short order dated 13.09.2021, whereby the applicant was allowed bail upon his furnishing a solvent surety in the sum of Rs.200,000/- (Two hundred thousand rupees) and P.R bond in the like amount to the satisfaction of trial Court and these are the reasons for the short order. Needless, to mention that the observations made herein above are tentative in nature and would not prejudice case of either party at trial.