RUSTAM vs THE STATE

ORDER

' I. Granted, but subject to all just exceptions. This is an application under section 497, Cr.P.0 moved by applicant Rustam son of Sono Khan for grant of bail in Crime No.77 of 2004 Police Station Dadu, relating to commission of offence punishable under sections, 302, 114, 147, 148 and 149, P.P.C. The applicant was arrested on 1-5-2004, and his bail application before the trial Court was dismissed vide order dated 25-6-2004, whereafter on 6-12-2004 he has moved the present bail application before this Court.

2. According to the prosecution story an incident of triple murder has occurred on 1-5-2004 at 2-30 a.m. At the house of complainant and such report was lodged by him with Police Station Dadu at 6-00 a.m. On the same day, naming therein Akbar, Imdad, Ahmed All all sons of Haji Muhammad Ismail. Moharram son of Hashim Chandio all armed with Kalashnikovs, Haji Muhammad Ismail son of Murad Ali Chandio empty handed, and five other unidentified persons as the accused duly armed with guns and rifles, involved in the commission of crime, which resulted in the murder of Ghulam Nabi. Soomar and Mst. Pathani. Specific role of firing at the deceased has been assigned to accused Akbar, Imdad and Ahmed Ali all sons of Haji Muhammad Ismail accused who had instigated them for this purpose. The applicant was not named by the complainant in the F.I.R.

However, in the 161, Cr.P.C. Statements of two other prosecution witnesses Dr. Muhammad Hassan and Bukhshal they named him with the allegations that he was also present at the place of occurrence duly armed with gun. However, no further overt act, has been attributed to the applicant.

3. Mr. Shafi Muhammad Memon, learned Counsel for the applicant contends that the applicant has been named by the two prosecution witnesses in their 161, Cr.P.C., statements as an afterthought due to his close relationship with the accused party, otherwise when, according to the complainant, five unknown persons were shown to be present at the place of incident, he could have also named the applicant in the F.I.R. By getting his name through other eye-witnesses of the incident. He further contends that mere presence of applicant at the place of occurrence, without any overt act attributed to him, does not disentitle him to the grant of bail in the light of various judgments of the Honourable Supreme Court. In support of his contention Mr. Shafi Muhammad Memon has relied upon the following cases:-

(i) Abdul Saleem v. The State (1998 SCM R 1578).

(ii) Gul Zaman v. The State (1999 SCM R 1271).

(iii) Amanat Ali v. The State (1993 SCM R 1992).

(iv) Muhammad Sadiq v. The State (1996 SCM R 1654).

4. Mr. Anwar H. Ansari, learned State Counsel did not concede for grant of bail to the applicant, however, at the same time he did not dispute that the applicant has not been named in the F.I.R.

And further even in the 161, Cr.P.0 statements of the prosecution witnesses no active role of participation in the commission of crime has been attributed to him.

5. I have carefully considered the arguments advanced by the learned counsel, perused the material available on record and the case-law cited by the learned counsel for the applicant.

6. Admittedly the applicant has not been named in the F.I.R. While the P. Ws. Who have named him in their statements under section 161, Cr.P.C. Have' also not attributed any active role to him in the commission of crime, except that he was also armed with gun and present at the place of occurrence. In such circumstances, following the dicta laid down by the Honourable Supreme Court of Pakistan in the cases referred above, the case of applicant needs further inquiry, which entitles him to the grant of bail.

7. Accordingly, the applicant is admitted to bail on his furnishing surety in the sum of Rs.300,000, (Rupees Three lac) and P.R. Bond in the like amount to the satisfaction of the trial Court.