ABBAS ALI Versus State
ORDER
AFTAB AHMED GORAR, J.--- Through this application, applicants Abbas Ali and Saad Abid Paganwala seek post arrest bail in Crime No.258/2015, registered at P.S Jamshed Quarters, Karachi, under sections 302, 114, 201, 34, P.P.C. Their earlier bail plea was declined by the learned Additional Sessions Judge-VIII, Karachi East.
2. The facts of prosecution case with reference to Report No.32 of P.S Jamshed Quarter under roznamcha is that ASI Muhammad Sarwar of P.S Jamshed Quarter reached at Jinnah Hospital, where PC Khalid Hussain and PC Faisal Abbas were already present. The dead body of the victim aged 22 to 25 years was available in the Cold Storage/mortuary, whose name and address was not known. Proceedings under section 174, Cr.P.C. were initiated and examination of the dead body was conducted and the documents were handed over to Dr. Kaleem MLO, who conducted postmortem under Reference PM-653. The belongings of the victim, i.e. shirt, trouser and two banyans were also handed over to ASI Muhammad Sarwar for the purpose of death certificate. The victim received a bullet at the left side of his waist, which was crossed through his throat. After proceedings, with regard to search of legal heirs/family members of the deceased, letter was given to the driver of Edhi Ambulance Irshad and dead body was sent to Edhi Cold Storage/mortuary, Sohrab Goth, Karachi. I.O. was informed about report Nos.37 and 39 and facts, circumstances and interrogation of accused Abbas Ali son of Imdad Hussain. Rickshaw driver, of Rickshaw No.D-96135, parked the rickshaw in front of Gujrat House, Bungalow No.159/M, PECHS, Karachi, on which the Chowkidar Phannay Khan, holding automatic SMG, started fighting with him then Saad Abid son of Mian Abid Manzoor; Mian Abid Manzoor and Abbas Ali came out from the bungalow and started using filthy and abusive language, while the driver also did the same. Saad Abid directed the Phannay Khan to fire at the rickshaw driver and the rickshaw driver in his rickshaw attempted to escape. Phannay Khan opened fire with SMG rifle upon the rickshaw driver, resultantly, the rickshaw twisted away and driver was killed, while a police mobile was coming there, when Mian Abid Manzoor saw the mobile coming towards the incident, directed Phannay Khan to go inside the bungalow while ASI Ashiq Ali has seen Phannay Khan firing upon the rickshaw driver. Mian Abid Manzoor got Phannay Khan to flee away, hided the SMG and told everyone to hide the incident. Abbas Ali was dressed black uniform and was shown as Chowkidar. Conclusion of the fact is that between 1515 to 1525 the above mentioned accused persons, with the help of automatic SMG, for spreading terror, opened the fire upon a poor rickshaw driver and have killed him and tried to shroud the offence. Hence this FIR.
3. Learned counsel for the applicants mainly contended that, no any active role of making fire at deceased has been assigned to any of the applicants; that mere presence of applicant No.1 has been shown on the spot, whereas applicant No.2 has been assigned role of only instigation, as such question of sharing common intention and vicarious liability would be determined at the time of trial. That, it was co-accused Phannay Khan who is alleged to have fired at deceased and since said Phannay Khan was an employee of applicant No.2, therefore, the applicants were grabbed in this case. Learned counsel further contended that case against applicants-is in fact a case of no evidence after examination of the P.W ASI Ashiq Ali, but it is a product of evidence collected on either the extra judicial confession made before the I.O. by applicant No.1 as alleged or on hearsay account, which is in violation of provisions of Qanun-e-Shahadat Order, 1984 and is inadmissible in evidence; that case of prosecution is of two versions, as from statements of independent corroboration collected by prosecution had only implicated only accused Phannay Khan and have not assigned any role to present applicants even their presence has not been shown, therefore, the case itself is; case of further inquiry within the meaning of subsection (2) of section 497, Cr.P.C. In support of his contentions, learned counsel for the applicants placed his reliance on 1984 SCMR 594 and 1436, 2004 SCMR 204, 2010 SCMR 1178, 2014 SCMR 1347, 2010 MLD 185, 2010 MLD 1827, 2007 PCr.LJ 149, 2012 PCr.LJ 1970, 2014 PCr.LJ 1724, 2015 PCr.LJ 1074, 2010 YLR 2839, 2014 YLR 1242, 2010 SCMR 1176 and SBLR 2015 Sindh 433.
4. Conversely, learned A.P.G. opposed grant of bail to applicants on the grounds that applicants are nominated in the FIR and prosecution witnesses have also implicated the in their statements recorded under section 161, Cr.P.C.
5. Perusal of record shows that the case of prosecution is based mainly on the evidence of co-accused/applicant Abbas Ali and ASI Ashiq Ali. ASI Ashique Ali in his statement has disclosed that he saw four persons quarreling with rickshaw driver; out of them Chowkidar Phannay Khan was having SMG in his hand and he fired at rickshaw driver and before his reaching all of them went inside the bungalow and closed the gate. ASI Ashique Ali has implicated only accused Phannay Khan for making fire upon deceased, while he has shown only presence of four persons including applicants. He has further sated that co-accused Abbas (applicant) disclosed to him that on directions of Saad Abid, the security guard Phannay Khan killed the rickshaw driver by firing shot; such disclosure/statement of co-accused is inadmissible in law. Furthermore, the Investigating Officer recorded statements of some independent persons of locality, who have only shown presence of principal accused Phannay Khan on spot. From the material available on record prima facie it appears that none of the applicants have been assigned any active role of making fire at the deceased; it was co-accused Phannay Khan who is alleged to have fired at deceased and it is well settled law that question of sharing common intention and vicarious liability would be determined at the time of trial. In these circumstances, so far case of applicants is concerned it falls within the purview of further inquiry as envisaged under section 497, Cr.P.C. Investigation Officer of the case is present and submits that investigation of the case is over and the applicants are not required for any further investigation. Accordingly, instant bail application was allowed and the applicants were granted bail on their furnishing solvent surety in the sum of Rs.300,000/= (Three hundred thousand rupees) each and P.R. bond in the like amount to the satisfaction of trial Court vide short order dated 17.09.2015, and these are reasons for the same.
6. Needless to mention here that the observations made hereinabove are tentative in nature and would not prejudice case of either party at trial.
ZC/A-90/Sindh Bail granted.