Cr. B.A. No. S-296 of 2012.

1. For orders on MA 1541-12.

2. For hearing.

04.06.2012.

Mr. Ghulam Shabbeer Shar Advocate for the Applicant.

Mr. Sardar Ali Shah Rizv, APG for the State.

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Naimatullah Phulpoto J., The applicant/accused Khuda Bux Junejo seeks bail in Crime No. 09 of 2012, registered at Police Station, B-section, Khairpur, under Sections 302, 148, 149, 114, 337H(2) PPC.

Brief facts of the prosecution case as disclosed in the FIR are that on 15.1.2012, complainant Ghulam Farooque lodged his report alleging therein that on the day of incident he along with his brother Abdul Kadir (now deceased) and nephew Abdul Wahid left home for making purchase from a shop. At about 6-30 p.m., when they reached in the common street where it is alleged that accused persons, namely, Din Mohammad alias Dino, Azhar Hussain armed with pistols, Ghulam Mujtaba alias Tharo with pistol, Fiaz Hussain Shah with gun, Munawar Ali Shah with .222 rifle and Khuda Bux appeared. It is stated that applicant Khuda Bux instigated co-accused Din Mohammad alias Dino while saying that there was quarrel with Abdul Kadir over the matter of children and he should not be spared. Further it is alleged that at his instigation, accused Ghulam Mujtaba Junejo, Fayaz Hussain Shah, Munawar Shah pointed weapons at Abdul Kadir and it is alleged that accused Din Mohammad alias Dino fired from TT pistol which hit Abdul Kadir who fell down. Complainant party remained calm as the accused persons were armed with deadly weapons. Thereafter accused while making aerial firing went towards their house. Complainant raised cries which attracted PWs. Feroze Ali Junejo and other villagers. Injured Abdul Kadir was removed to Civil Hospital, Khairpur, where he succumbed to the injuries. Complainant made the PWs to sit over the dead body and went to P.S. for registration of report. FIR was lodged under the above referred sections. Applicant was arrested on 24.1.2012 and after usual investigation challan was submitted against accused. Thereafter bail application was moved before the Court of learned II-Additional Sessions Judge, Khairpur and it was dismissed vide order dated 15.2.2012, thereafter applicant has approached this court.

The learned counsel for the applicant has contended that role of instigation has been assigned to the applicant in the commission of offence, yet vicarious liability of the applicant is to be determined at trial. He further contended that co-accused Munawar Shah has been granted bail by trial court and the case of the applicant is identical. In support of his contentions, he relied upon case of Muhammad Daud and another v. The State (2008 SCMR 173) and Jhando and another v. The State (2006 YLR 3206) Karachi.

The learned APG appeared on behalf of the State and conceded the contentions of the learned counsel for the applicant.

I am inclined to grant bail to the applicant Khuda Bux for the reasons that the allegation of instigation to co-accused has been assigned to the applicant/accused for commission of alleged offence. Vicarious liability of the applicant for the commission of offence is yet to be determined at the trial. Co-accused Munawar Shah has already been granted bail by the trial court and the case of the applicant is more or less identical. Learned counsel for the applicant has rightly relied upon the case law reported in case of Mohammad Daud (supra) wherein Hon’ble Supreme Court has been pleased to hold as under:

“We have heard the learned counsel for the parties and have also gone through the order dated 25^th April, 2007 passed by this Court in the case of Jamil Ahmed v. The State and another (Criminal Petition No. 99 of 2007) whereby a co-accused was admitted to bail. It is also informed that co-accused Muhammad Ishaq and two others in the case have also been admitted to bail. Therefore, in view of the order in the case of Jamil Ahmad (supra) and following the rule of consistency the petitioners are also admitted to bail subject to furnishing surety bonds in the sum of RS. 100,000 (rupees one lac) with P.R. bond in the like amount to the satisfaction of the trial Court. The petitions are converted into appeal and allowed bail”.

In the case of Jhando (supra) this Court has held as under:

“As per prosecution case, the main accused Fayaz had fired at the deceased in view of the allegation of instigation/empty-handed and no Lathi was used by co-accused Mumtaz, the applicability of section 34, P.P.C., is yet to be determined at the time of trial. The enmity is admitted between the parties prior to the lodging of the F.I.R. The question of participation of present applicants/accused in commission of the offence needs further inquiry as envisaged in sub-section (2) of section 497 Cr.P.C.

For my above stated reasons, question regarding sharing of common object by the present accused with co-accused regarding his vicarious liability for the offences allegedly committed by co-accused, in circumstances of the case would be gone into by the trial court and said question calls for further probe and on the rule of consistency, case against the applicant/accused Khuda Bux needs for further enquiry, as envisaged in sub-section (2) of section 497 Cr.P.C. Therefore, bail is granted to the applicant/accused Khuda Bux subject to his furnishing solvent surety in the sum of Rs. 200,000/- (rupees two lacs) with PR bond in the like amount to the satisfaction of the trial court.

Bail application is disposed of accordingly.

Judge,

Ahmed