SHAFI MUHAMMAD Versus THE STATE
ORDER
1. The applicant is involved in Crime No.44 of 2001 of Police Station Mirpur Sakro, under sections 302/504/34, P.P.C.
2. The facts briefly stated are that complainant Muhammad Ismail alias Gharib and accused Lal Muhammad alias Lalo are relatives and they were on visiting terms with each other. Nikah of accused Lai Muhammad alias Lalo was performed with Mst. Zainab alias Nani but subsequently that marriage was dissolved and afterwards she married with Asadullah son of complainant. It is stated in the First Information Report that the accused Lal Muhammad alias Lalo, his sister's husband Shafi Muhammad and other relatives were annoyed over it. On the day of incident his son‑in‑law Muhammad Hanif informed him while he was on duty at Post Qasim Karachi that the applicant Shafi Muhammad, Lal Muhammad alias Lalo, Suleman and Muhammad came in a Alto car of Shafi Muhammad and stopped it near mosque of the village, where he, prosecution witnesses, Ali Muhammad, Muhammad Ali and Rasool Bux were standing. Accused Lal Muhammad got down from car. The applicant directed him, to come back after completing his job. He further informed the complainant that accused Lal Muhammad alias Lalo went to the house of complainant and the witnesses followed him. At about 5‑00 p.m., he abused Muhammad Javed, saying that since he had helped Mst. Zainab to get her marriage dissolved with him, therefore, he would not spare him. After saying so, he picked out T.T. Pistol from the fold of his trouser and opened fire to Muhammad Javed. Accused came back and fled from the scene of offence in the same car, which was being driven by the present applicant/accused. Muhammad Javed was removed to Hospital but he succumbed to injuries, before he could receive any treatment.
3. It is contended by Mr. Abdul Mujeeb Pirzada, learned counsel for the applicant/accused that the applicant is brother‑in‑law of main accused and he has been involved in this false case mala fidely. He has been involved on account of enmity between the complainant and his brother‑in- law Lalo. His arrest and the involvement is motivated on account of the aforesaid enmity. It is submitted that neither the applicant entered the house of complainant nor he was carrying any weapon. So far the allegations attributed to him that he took the main accused in his car to the house of the deceased is yet to be determined at the time of trial. His vicarious liability is yet to be established when the witnesses are examined. The case was initially investigated by Mirpur Sakro police and the accused was placed in column No.2 of the challan but subsequently the investigation was transferred to some other police and the final challan was submitted wherein the name of applicant was included. The police had examined two prosecution witnesses who have specifically stated that the applicant was not present at the scene of incident at relevant time. The First Information Report is delayed by about 5 hours which remains unexplained in First Information Report and it leaves the room for false involvement of the present accused. The First Information Report was lodged by the complainant, who was not an eye‑witness of the incident. Reliance is placed upon the cases of Muhammad v. The State 998 SCMR .454, Faraz Akram v. The State (1999 SCMR 1360), Jamaluddin v. The State (1985 SCMR 1949) and Raza Muhammad Sial v. The State (1988 SCMR 1223).
4. Mr. Mehmood A. Qureshi, learned counsel for the complainant has argued that the applicant is an influential man and, therefore, he was let off by the Investigating Agency. The place of incident is 24 kilometers away from the police station and therefore, the delay in lodging the first information report is immaterial. It is submitted that four eye‑witnesses namely Muhammad Hanif, Ali Muhammad, Muhammad Ali and Rasool Bux had witnessed the incident and they have fully supported the case of prosecution. It is stated that the applicant Shafi Muhammad had brought the main accused in his car and has played a vital role in the commission of offence. He issued directions to principal accused to come back after completing the task assigned to him. The conduct of the accused shows that he was fully involved in the murder of Muhammad Javed. The reliance is placed upon the cases of Muhammad Arshad v. The State (PLD 1996 SC 122) and Muhammad Din v. The State (1998 SCMR 1).
5. Mr. Fazlur Rehman Awan, learned counsel appearing for the State submits that the applicant has made out a case for pre arrest bail. He has conceded to the confirmation of interim bail, earlier granted to the applicant.
6. The record shows that Nikah of Mst. Zainab was performed with main accused Lal Muhammad alias Lalo who happens to be brother‑in‑law of present applicant. Nikah was subsequently got dissolved and she was later married to one Assadullah the brother of deceased Muhammad Javed. It is stated by the complainant that the accused were annoyed over the dissolution of aforesaid marriage. The only allegation against the applicant is that he brought the main accused near the venue of occurrence in his car and issued directions to him to complete the task assigned to him. The police has not made any Mushirnama of the wheel marks of the car near the house of deceased. The first information report is delayed by about more than 5 hours which leaves room for deliberations and consultations. Admittedly the applicant did not enter the house of deceased. He was not armed with any weapon. No overt act is attributed to him except that of conspiracy. The vicarious liability contained under section 34, P.P.C. would be warranted if the said allegations are positively proved. The possibility of false involvement due to the aforesaid enmity could not be overruled out. The bail plea of accused is not opposed by the learned counsel appearing for the State. The case‑law cited by the learned counsel for the complainant is not attracted to .the facts and circumstances of the instant case.
7. Under these circumstances, the interim pre‑arrest bail granted to accused on 13‑2‑2002 is confirmed on the same terms and conditions.
8. H.B.T./S‑226/K Interim bail confirmed.