GULZAR KHOSO vs THE STATE

ORDER

1. ' SYED SAJJAD ALI SHAH, J.--- Present application has been moved on behalf of applicant Gulzar son of Ali Hassan seeking bail in Crime No,89 of 2005 of Police Station, Mehar for an offence under sections 302, 147, 148, 149, 504, 109, P.P.C.

2. ' Briefly stated the facts as per F.I.R. Are that complainant Abdullah Khokhar on 7-6-2005 at 1430 hours reported that in the morning his nephew Zulfiqar Ali along with other under-trial prisoners was brought by the police from District Jail, Dadu for his production before II-Judicial Magistrate, Mehar in connection with a case pending against him under section 13(e) of the Arms Ordinance, 1965. The complainant along with his other nephew Manzoor and brother-in-law Niaz Hussain had come to meet Zulfiqar Ali and to provide him food. Zulfiqar was jointly hand cuffed with one Bahadur All Mahessar, the complainant saw accused Akbar, Gulzar, Zulfiqar Sudheer, Ali Sher and Juman in the Court premises who were whispering with each other. The complainant apprehending danger informed the Head Constable of the escort about his enemies but he did not take any measures. After producing Zulfiqar before the concerned Judicial Magistrate the police took him along with UTP Bahadur to the. Court of Additional Sessions Judge, Mehar and when at about 1330 hours they were brought from the said Court the above mentioned accused took out their pistols and while pointing their pistols towards complainant directed them not to move.

3. Whereas accused Sudheer fired at Zulfiqar with the intention to kill which fire hit Zulfiqar on the back side of his chest, Zulfiqar fell down whereafter all the accused managed to escape except accused Akbar who was apprehended by the police and complainant on the spot along with an unlicensed pistol with three cartridges. The injured was taken to Taluka Hospital, Mehar where he succumbed to the injury caused by fire-arm. The complainant thereafter immediately lodged the F.I.R.

4. ' Bail application of the present applicant did not find favor with the 1st Additional Sessions Judge, whereafter the present application was moved.

5. ' Mr. Muhammad Ayaz Soomro, learned counsel for the applicant has contended that no overt act whatsoever has been attributed to the applicant and the only fire-arm injury sustained by the deceased admittedly was caused by Sudheer. It was contended by the learned counsel that the question as to whether the accused shared common intention to commit the murder of the deceased or could be charged vicariously can only be decided at the time of trial and, it definitely is a case of further enquiry entitling the applicant to the concession of bail. In support of his contention the learned counsel has placed reliance on the case of Sher Khan and another v. State 1980 SCM R 193, Shahid v. State 1994 SCM R 393 and Mumtaz Hussain and 5 others v. State 1996 SCM R 1125. The learned counsel has further placed on record the order, dated 15-2-2006 whereby bail application of co-accused Ali Sher was rejected by this Court and contended that the case of the present applicant is different than the one of Ali Sher and further that since the order, dated 15- 2-2006 has no binding force therefore, the application be decided on merits.

6. ' On the other hand Mr. Mushtaque Ahmed Abbasi, learned Assistant Advocate-General opposed the grant of bail on the ground that the applicant shared common intention with the principal accused and further the applicant has not only played a specific role in facilitating the murder of the deceased but also facilitated the co-accused in escaping from the place of occurrence. It was further contended that the offence being not only heinous but also alarming that the deceased was killed in judicial custody. The learned Assistant Advocate-General further contended that there is no difference between the case of present applicant and All Sher whose application for bail has been rejected by this Court, therefore, this application is also liable to be dismissed on the ground of consistency.

7. ' I have heard the contentions of the learned counsel for the respective parties and have gone through the record as placed before me.

8. ' It appears from the bare reading of the F.I.R. That no allegation of firing was made against the present applicant but his presence has been shown at the place of occurrence with weapon. It is further important to observe that Sudheer who caused the sole shot from his pistol which resulted in the death of the deceased is the brother of the present applicant and the manner in which the murder was committed appears to. Be preplanned where three brothers, namely Gulzar i,e, applicant, Zulfiqar and Sudheer along with Akbar, Ali Sher and Juman in a preplanned manner in Court premises shot the deceased. It is also important to note that no explanation whatsoever is rendered to justify the presence of accused at the place of occurrence along with his brothers which leads to a tentative view that the applicant/accused shared common intention to commit the murder of deceased.

9. ' Coming to the case-law relied by the learned counsel for the applicant, bail was granted by the.

10. Honourable Supreme Court in the case of Sher Khan and another (supra) to an accused person against whom no overt act was ascribed and only a Lalkara was attributed. In the said case there were two sets of accused one armed with Lathis and the other armed with guns and the deceased died due to fire-arm injury. Bail was granted to the accused who was armed with Lathi and to whom only a Lalkara was attributed. However, in the said case even according to the prosecution the petitioner had 'no motive for murdering the deceased. Whereas in the present case not only the motive i,e, revenge but the common intention is evident from the every word of the F.I.R.

11. ' In the case of Shahid (supra) bail was granted to accused who was attributed the role of having caught hold of the deceased when his co-accused was inflicting dagger blows. Similar role was attributed to Munsif, their father for having given kicks and fist blows to the deceased. The latter having been extended the concession of bail on the principle of consistency the petitioner was also found to the grant of bail. It was further observed that in view of the statement of prosecution witnesses during investigation it is to be determined whether facilitating the commission of offence for application of section 34, P.P.C. Makes out a case for further inquiry. However, with all due respects the facts of the case in hand are totally different and ratio laid down in the captioned case is not attracted at all.

12. ' In the case of Mumtaz Hussain (supra) the applicants were refused the concession of bail by this Court on the ground that they, prima facie, shared common intention as they were armed with deadly weapons at the time of incident. The Honourable Supreme Court while upholding the decision of this Court for refusing bail to three accused extended the concession of bail to the remaining accused as they only caused simple blunt injuries to some of the prosecution witnesses using the blunt side of their weapons, therefore, it was held that the case of the second set of the accused as to whether they shared common intention with those who caused death of the deceased needs further inquiry.

13. ' It is well-settled by now that the facts of every criminal case are different than the other and therefore, each case is to be decided keeping in view the facts of that case and, therefore, the conclusion may vary. It is, therefore, of the utmost importance that it is the mind of the Court which has to be satisfied that the case under its consideration is a fit case or not for the grant of bail keeping in view the legal requirement. Looking at the gravity of offence that an under-trial prisoner has been killed in the Court premises while in judicial custody and the applicant not only facilitated the commission of the offence but also facilitated the other co-accused to escape having no justification as to his presence in the Court premises reasonably connect the applicant in a preplanned murder.

14. ' In the circumstances I am fully in agreement with the observation of my learned brother Nadeem Azhar Siddiqui, J. Who while rejecting the bail application of co-accused Ali Sher observed that keeping in view the circumstances of the case it can be safely said that there are reasonable grounds to believe that the applicant played his role in a preplanned murder and has shared common- intention with other co-accused in the commission of crime falling under the prohibitory clause of section 497(1), Cr.P.C. Disentitling the applicant for grant of bail on the ground of further enquiry.

15. ' Mr. Ayaz has further failed to distinguish the case of the present applicant from the one of Ali Sher, on the contrary since the applicant was the brother of the principal accused, therefore, his case is worst than the one of Ali Sher.

16. ' For what has been observed above which of course is tentative in nature and would not affect the merits of the case the application of the present applicant grant of bail is hereby dismissed.