Maqbool Ahmed and another vs The State

ORDER

ABDUL HAMEED BALOCH, J.---Through this order I intend to dispose of above pre-arrest bail application filed by the applicants in case FIR No. 31 of 2019, registered under sections 302, 324, 147, 148, 149 Pakistan Penal Code (P.P.C.) with Police Station Dalbandin District Chagai.

2. Precise facts of the case are that on 23rd June, 2019 case FIR No. 31 of 2019, under sections 302, 324, 147, 148, 149, P.P.C. was registered with Police Station Dalbandin District Chagai on the report of complainant Abdul Salam alleging therein on the said date at about 9:15 p.m. after performing Isha prayer his cousin Nabi Bakhsh came out of the Masjid and loudly talking with any one, on which he came out of the Masjid and found that accused Khair Shah was loudly speaking with his cousin. It was further alleged that meanwhile his other relatives also rushed over there, on which the accused Aziz Shah, Habib Shah and Maqbool Shah started firing with pistols upon them, due to which his cousin Muhammad Ibrahim, Zafar , Muhammad Abbas, villagers Zahoor Ahmed, Sana-ullah, Wazir Ahmed and Khalil Ahmed sustained injuries and fell and the accused persons fled, away on motorcycles. It was further alleged that meanwhile accused Noor Shah, Abid Shah, Murtaza Shah, Mustafa Shah, Shah Hussain, Nadeem Shah, Qudratullah Shah, Naseebullah, Asmatullah, Zubair Shah along with five other unknown persons duly armed with Kalashnikovs reached there for help of accused persons. It was further alleged that the injured were brought to hospital where Muhammad Ibrahim succumbed to his injuries, whereas the other injured were referred to Quetta for further treatment. The motive was alleged to be family dispute. With these allegations FIR was chalked.

3. After registration of FIR the accused/applicants and co-accused were arrested, whereas the remaining were not arrested and absconded. On completion of investigation challan was submitted before learned Sessions Judge, Noshki (trial court). The applicants moved bail application before the trial court, who vide order dated 8th January , 2021 rejected the bail application, hence the applicants are before this court.

4. Learned counsel for the applicants contended that the complainant and witnesses have nominated all male members of the family . No specific role assigned to the applicants. The statements of four witnesses have been recorded, which are contradictory to each other , therefore, the applicants are entitled for grant of bail. The co- accused Sher Ali with similar role has been granted bail by this Court, therefore, as per rule of consistency the applicants are entitled for bail.

5. On the other hand the learned State Counsel vehemently opposed the contention of the applicants and stated that the applicants are nominated in the FIR with specific role of firing at deceased. The of fence is heinous one.

6. Heard and perused the record. The record transpires that complainant Abdul Salam registered FIR with Police Station Dalbandin. The applicant No. 1 was arrested, who filed bail application before the trial court which was dismissed. Whereafter , the applicant No.1 filed Bail Application No. 216 of 2020 before this court which was also dismissed vide order dated 11th June, 2020. After recording evidence the applicant No. 1 filed second bail application before the trial court which was rejected by the trial court vide order dated 8th January , 2021.

7. The record reveals that though the applicant has been nominated in the FIR. During course of investigation four witnesses in their statements under section 161 Cr.P.C. implicated the accused/ applicants with one Sher Ali with the allegation of firing upon deceased and witnesses. Accused Sher Ali has been granted bail by this court in Bail Application No. 214 of 2020 vide order dated 8th June, 2020. As per prosecution record the role assigned to accused/ applicants are same. The principle of rule of consistency is applicable to the case of the applicants.

Reliance is placed on Ashfaq Ahmed alias Goga v . The State 2014 YLR 954 , wherein it was held: "4. I have heard the learned counsel for the petitioner and the learned Deputy Prosecutor -General and have also gone through the record of this case with their able assistance. There. is no denying of the fact that co-accused Javaid who has been attributed same role as that of petitioner Ashfaq Ahmad alias Goga has already been allowed bail by this Court and that order has not been challinged by the complainant so petitioner Ashfaq Ahmad deserves the concession of bail on the rule of consistency; reliance can easily be placed upon 1982 SCMR 909; as far as petitioner Muhammad Mushtaq is concerned, the role attributed to him is that he has caused firearm injury on the head of Irfan injured P.W.; the injury attrib uted to petitioner Muhammad Mushtaq is declared as 337A(ii), P.P.C.; he has not repeated the fire so the question of attraction of section 324, P.P.C. to the extent of petitioner Muhaiiimad Mushtaq is to be determined by the learne d trial Court after recording evidence; he has not caused any injury to the deceased so the question of vicarious liability of the accused is to be determined by the learned trial Court after recording evidence; reliance can easily be placed upon 1981 SCMR 1082; he remained on physical remand but nothing was recovered from him; he is previous non-convict; investigation of the case is complete and he is no more required for further investigation; he is behind the bars since 28-11- 2012; no useful purpose would be served by keeping him behind the bars."

8. Mere involvement of accused in the offence punishable with capital sentence falling within the ambit of prohibitory clause of section 497(1), Cr.P.C. does not disentitle the accused for the concession of bail. It is principle of law that benefit of doubt can be extended to accused even at bail stage. Reliance is placed on Muhammad Faisal's case, reported in 2020 SCMR 971 , wherein it was held: "----It is established principle of law that benefit of doubt can even be extended at bail stage."

9. The applicants are facing trial. So far the prosecution has examined four witnesses. On tentative assessment the case of the applicants fall within the doma in of section 497(2), Cr.P.C. Reliance is placed on Haday Khan v. State 2019 YLR 96 . It was held therein: "6. Heard the learned counsel for the parties and with their valuable assistance gone through the record. Besides, after concluding investigation in the matte r, challan of the case has been submitted in the trial Court, the applicant (accused) has been remanded, to judicial custody , while after taking cognizance the trial has commenced with the trial of the case. The guilt or innocence of the applicant is yet to determine by the trial Court after recording evidence, hence due to long absconsion concession of bail cannot be withheld."

In view of the above the bail D application is allowed. The applicants Maqbool Shah son of Khair Shah and Khair Shah son of Rahim Shah are admitted to bail in case FIR No.31 of 2019, under sections 302, 324, 147, 148, 149, P.P.C., Police Station Dalbandin District Noshki, subject to furnishing surety in the sum of Rs.500,000/- (Rupees five hundred thousand) each with PR of the like amount to the satisfaction of Additional Registrar of this court or the trial court. However , the trial court is directed to decide the case preferably within a period of four months without granting unnecessary , adjournments.

The observations made herein-above are tentative in nature and same shall not influence the merits of the case.