DILDAR Versus State
ORDER
1. SHAHID ANWAR BAJWA, J.- --F.I.R. No.117 of 2011 was recorded at Police Station Rahmatpur on 18-9-2011 1315 hours for an incident alleged to have occurred 45 minutes earlier.
2. The complainant stated that the accused party demanded hand of a girl which was declined on the ground that the girl was yet a minor. This annoyed the accused party and on the fateful day while the complainant along with his brother Shamsuddin, the deceased, another brother and a cousin person were going to a place; they were waylaid by a group of four persons, one unidentified and all armed with pistols, including the present applicants. Co-accused Ali Muhammad gave proverbial hakal and co-accused Gulzar fired at Shamsuddin which hit him. Thereafter the accused persons while resorting to aerial firing went away. Shamsuddin was found unconscious. He was shifted to hospital where he expired.
3. Learned counsel for the applicant submitted that there is no allegation of firing or injuring any one against the present applicants and all that is alleged against them is that after the incident they resorted to aerial firing. Learned counsel relied upon Muhammad Hashim Khoso v. The State (2011 PCr.LJ 1580).
4. Mr. Altaf Hussain Surahio, learned State Counsel submitted that although the applicants have been behind bars for quite sometime but nothing incriminating has been recovered from them, though empties have been recovered from the place of wardat. He submitted that in view of, non-recovery and in view of role of only aerial firing against the applicants he does not oppose the bail application.
5. Mr. Zahid Hussain Chandio, learned counsel for the complainant submitted that the F.I.R. has been promptly lodged, the present applicants have been named in the F.I.R. and it is alleged that they come duly armed with pistols. He submitted that there was common intention to commit murder and therefore, he would oppose this bail application. Learned counsel relied upon Abdul Rabb v. The State in Criminal Bail Application No.819 of 2011 of Sukkur Bench and Rana Muhammad Safdar v. Gulzar alias Papu (1999 PCr.LJ 1).
6. While exercising his right of reply, Mr.Aftab Ahmed Gorar relied upon Allah Nawaz v. The State (2004 SCMR 1175).
7. I have considered the submissions made by the learned counsel and have also gone through the record.
8. In Muhammad Hashim Khoso's case (supra), which is bail application decided by me it was observed as under:--
9. "As far as Muhammad Hashim, applicant in Criminal Bail Application No.13 of 2011, is concerned, the only role alleged against the applicant in the F.I.R is that he firstly gave proverbial hakal and thereafter Shahjehan Khoso, Suhail Raza and the unknown person fired on the deceased and Muhammad Akram had been fired upon and received injuries in his legs. Hashim along with others made good his escape while firing. It is not stated in the F.I.R that any injuries to the deceased were caused by Hashim and in respect of injury received by Muhammad Akram. Now the "they" consisted of 4 persons and injury received by Muhammad Akram is only one. It is not stated as to which one caused injury to Akram. It is, therefore, at best a case of further inquiry."
10. In Allah Nawaz's case (supra), facts were that it was stated in the F.I.R. that the complainant and Bashir were going on a bicycle and so was one Muhammad Saleem. As Muhammad Saleem reached near shop of Allah Nawaz, the co-accused armed with hatchets came out from the shop and started giving blows to the complainant. Meanwhile Allah Nawaz armed with pistol also came out of the shop and fired at Muhammad Saleem, as a result of which he fell down and succumbed to his injuries. Allah Nawaz and his co-accused fled away. F.I.R. was registered. Allah Nawaz applied for bail which application was dismissed by the Magistrate. Thereafter he applied for bail before the Sessions Judge; his bail application was allowed. On miscellaneous application, the High Court cancelled the bail which order was challenged in the Supreme Court. The Supreme Court observed as under:--
11. "The reason which weighed with the learned Judge in Chambers of the High Court for cancellation of bail was that the petitioner was vicariously liable for the offence which prima facie was a ground for further inquiry, into his guilt. The considerations for the grant of bail and cancellation thereof are different. Section 497(1), Cr.P.C. lays prohibition for the grant of bail for offences entailing punishment of death or imprisonment for life or imprisonment for ten years whereas subsection (5) of the said section has not imposed any such conditionality for cancelling the bail and any bail granting order which appears to be injudicious or perverse to the High Court or the Court of Session, as the case may be, can be recalled by it. In the instant case, the learned Sessions Judge while allowing bail to the petitioner had taken into consideration the material available before him and he exercised his discretionary powers under section 497(1), Cr.P.C. in favour of the petitioner which do not seem to be perverse or arbitrary, therefore, no exception could be taken to such a discretionary order."
12. On the other hand, learned counsel for the applicant relied upon the order passed in Abdul Rabb's case (supra). That case is clearly distinguishable because it is a case of highway robbery and bail was declined on the ground of vicarious liability.
13. Learned counsel for the complainant relied upon Rana Muhammad Safdar's case (supra). It was alleged in the F.I.R. by the petitioner/complainant that he along with his injured cousin left their house and proceeded to their lands. On the way, two persons appeared. Gulzar Ali fired at the cousin hitting him on the forehead and on right arm which attracted son of cousin and co-accused Intezar fired at him from his rifle hitting on his chest who fell down. Gulzar was allowed bail against which application under section 497(5), Cr.P.C. was filed. Facts are clearly distinguishable. There was clear allegations both against Gulzar and Intezar; Gulzar fired at the deceased, killing him and Intezar fired at son of cousin hitting him on chest. In the present case only allegation against the present applicants is aerial firing. Whether there was any common intention or not, as held by the honourable Supreme Court in Allah Nawaz v. The State (2004 SCMR 1175), is almost always a question of further inquiry.
14. Result of above discussion is this criminal bail application is allowed and the applicants are ordered to be admitted to bail upon their executing P.R. bond in the sum of Rs.300,000 each with one solvent surety each for the like amount to the satisfaction of trial Court.
15. M.W.A./D-3/K Bail granted.