Cr.B.A.No. 553 of 2012.
For Hearing.
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27.08.2012. Mr.Syed Ali Amir Shah advocate for the applicant.
Mr.Sardar Ali Shah APG for the State.
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SALAHUDDIN PANHWAR, J- The applicant seeks after arrest bail in Crime No.41/2010 Police Station, Tando Masti Khan under Section 302, 34, 148, 149, PPC.
Relevant facts are as under:-
“Complaint is that there existed murderous dispute with accused Ali Mardan alias Madoo Phulpoto. Today I and my father Eidal son of Bulando aged about 61/62 years and brother-in-law Niaz son of Bangul Phulpoto together proceeded from Khairur to our village Danvro on Motor Cycle and when at about 5.30 P.M reached at link road leading to Jumo village near National Highway we saw and identified accused namely Ali Mardan alias Madoo son of Nawaz 2.Janan son of Hashim 3.Dilawar son of Ghazi 4.Qadir Bakhsh 5.Bhamdho son of Muharram 6.Baboo son of Faiz Muhammad 7.Yaka alias Liaquat son of Faiz Muhammad all by caste Phulpota, residents of near Danvro Taluka Khairpur with T.T pistols emerged out from northern side palm trees garden and wheat crop came at the road and pointed their weapons to us and beckoned to stop the Motor Cycle and we due to fear of weapons stopped our Motor Cycle and in the meantime, all the accused encircled us and accused Ali Mardan brought down my father Eidal from the Motor Cycle and said that “You had previously committed our murder hence today we will not spare you and will murder you”. On this I asked him that: “Faisla was made with you on Holy Quran and you have taken Rs.4,00,000/- from us also”. On such saying accused Ali Mardan, 2.Janan, 3.Dilawar 4.Qadir Bakhsh 5.Yaka alias Liaquat 6.Bhambhro Phulpoto directly fired with T.T pistol who cried and fell down and within our sight struggled and succumbed to the injuries and then we raised cries and on the cries all the accused went away towards northern side. Thereafter we saw that one fire was sustained on nose like hole which had run across blood was oozing; second fire was sustained on chest like hole which had run across blood was oozing; third fire was sustained on left side of chest which had run across blood was oozing; forth fire was sustained on right side bosom like hole blood was oozing; fifth fire was sustained below the right shoulder like hole blood was oozing; sixth fire was sustained on right muscle like hole blood was oozing and then near relatives of village also arrived there to whom above facts were narrated and left them for supervision of dead body now I have appeared and make complaint that abovenamed accused in collusion with each others due to personal murderous enmity directly fired pistol shots upon my father Eidal and have brutally and innocently murdered him”.
After lodgment of FIR accused was arrested on 6.4.2012. The case was challaned.
The learned counsel for the applicant has inter-alia contended that no specific role is assigned to the applicant as he has not caused any injury to the deceased or witnesses even there is no allegation of aerial firing or instigation against the accused; main dispute as stated in FIR is with co-accused Ali Mardan who has been acquitted under Section 265-K Cr.P.C by the Judgment dated 26.8.2011; the case of the present applicant is on better footing then the case of co-accused Ali Mardan; the case of the applicant falls within scope of further enquiry therefore he is entitled for bail. In support of such contention, the learned counsel relied upon the case law reported as Muhammad v The State (1998 S C M R 454), Faraz Akram v The State (1999 S C M R 1360) and Attaullah and 3 others v The State and another (1999 S C M R 1320).
Conversely, learned APG appearing for the State has not contraverted the contention of the learned counsel for the applicant and further says that when co-accused on similar role has been acquitted under Section 265-K, Cr.P.C, therefore he concedes to the grant of bail to the present applicant.
Heard the learned counsel for the parties and perused the record.
The FIR and police papers show that the applicant was present alongwith co-accused when the offence was committed but no overt act has been assigned to the present applicant only the role assigned to the applicant is his presence at the place of incident. According to the FIR co-accused Ali Mardan is the main accused, who, stopped the complainant party and asked them that they have committed the murder of his father therefore they will not be spared and further Ali Mardan instigated to the other accused, except applicant/accused, the other accused persons caused fire shot injuries to the deceased party. No allegation exits to the applicant regarding any participation in the offence. Since the point against the applicant is common intention, therefore, his vicarious liability on this ground can be determined at the trial stage.
I have also examined the case law relied upon by the learned counsel for the applicant. In the case of Muhammad (supra) it has been held that only role of ineffective firing was alleged against accused, therefore bail was granted. In case of Faraz Akram (supra) only role of ineffective firing was alleged and bail was granted. In the case of Attaulalh (supra) no allegations regarding any injury caused to the deceased were leveled therefore bail was granted.
Keeping in view the circumstances mentioned above and the case law cited by the learned counsel for the applicant, the applicant has made out a case within the scope of further enquiry, thus he is entitled for bail as co-accused Ali Mardan on similar circumstances has already been acquitted from the case by the trial Court. The applicant shall be released on bail subject to his furnishing solvent surety in the sum of Rs.200,000 and P.R Bond in the like amount to the satisfaction of the trial Court.
Application stands disposed of.
JUDGE
Akber.