Malik JAFFAR And 2 Others vs THE STATE

JUDGMENT MUHAMMAD HASHIM KHAN KAKAR, J.---Applicants Malik Jaffar Khan, Haji Abdul Hakeem and Saleemullah, who are involved in case F.I.R. No.20 of 2011 dated 19-5-2011, registered with Police Station Saddar Mach, District Kacchi, under sections 302, 324 read with sections 147 and 149 of the Pakistan Panel Code 1860, by filing this application, seek post-arrest bail.

2. The allegation in the F.I.R., registered at the instance of complainant Babu Pukar son of Shaheen Khan, caste Satakzai, resident Killi Gul Khan Mach, District Kacchi, was that on 19-5-2011, the applicants along with their companions Abdul Qadus, Muhammad Ishaque, Muhammad Ismail, Nazeer Ahmed, Abdul Sattar, Zia-ul-Haq, Mangay Khan, Muhammad Akram, Sarang and Wahid, attacked the complainant, his son Salm and Sona Khan with firearms, which resulted the death of one Sona Khan and firearm injury to Salam on his leg, while complainant miraculously remained safe. The motive behind the incident is stated previous enmity between the Sumalani and Satakzai tribes.

3. Sardar Ahmed Haleemi, learned counsel for the applicants, contended that cross cases have been lodged by both the parties against each other and, at this stage; it cannot be ascertained as to which party is aggressor and which party has been aggressed. He further stated that this itself makes out a case of further inquiry in view of the fact that applicants are not hardened or desperate criminal and are no more required by the police for the purpose of investigation. He also urged that a number of accused have been roped in the instant case, but no specific role has been assigned to any one including the applicants. He, in support of his arguments, made reliance on the judgments-reported in 1999 SCM R 1360 and 1996 SCM R 1845.

4. On the other hand, learned counsel for the State has stated that counter case was registered after four hours of the present incident. The names of the applicants have specifically been mentioned in the present F.I.R. And their roles have been certified and itself been confirmed by them in the counter' case i.e. F.I.R. No.21 of 2011, under sections 324, 436 read with sections 147 and 149 of the P.P.C., which is an afterthought. He also stated that keeping in view the dictum laid down in case of Nasir Muhammad Wassan and another v. The State reported in 1992 SCM R 501(b), in a counter case, bail cannot be granted as a right. The attention of the court has also been drawn to section 149 of the PPC, which reads as under:-- "If an offence is committed by any member of an unlawful assembly in prosecution of the common object of that assembly, or such as the members of that assembly knew to be likely to be committed in prosecution of that common object, every person who, at the time of committing that offence, is a member of the same assembly, is guilty of that offence."

Learned State counsel has stated that section 149 of the P.P.C. Is relevant, because the number of the accused persons is more than five and each and every person, as per the contents of the F.I.R., has participated in the crime, thus, they all are vicariously liable for the offence. It was further contended that, prima facie, a case is made out against the applicants and bail cannot be granted to them.5. A tentative perusal of the record shows that the applicants are duly named in the F.I.R. During the course of investigation, the applicants were found to be involved in the commission of the alleged offence. The allegation, as contained in the F.I.R., is duly supported by the affectes i.e. Complainant Pukar Khan and injured witness Abdul Salam, in their statements recorded under section 161 of the Cr.P.C. The contention of learned counsel regarding specific role has no legs to stand, as section 149 of the P.P.C. Furnish a complete answer to the said contention.

6. It appears from record that deceased Sona Khan had died due to injuries received by him by discharge of firearms, which is supported by the ocular evidence as well as the external postmortem examination report. Presence of the applicants on spot - along with 'the absconding accused has been tentatively established from prosecution record as well as from cross F.I.R. No.21 of 2011 dated 19-5-2011. The case-laws cited by the learned applicants counsel are quite distinguishable with the " facts and circumstances of the present case.

In view of the above, I have no reason to differ with the order of refusal of bail made by the trial Court. Application is, accordingly, dismissed, however, observations made hereinabove, on the merits of the case, are purely tentative and the trial court shall not be influenced by them in any manner whatsoever. The trial Court will consider the case purely upon independent assessment of the material, uninfluenced by whatever is stated above.