DINAL Versus State
ORDER
1. AFTAB AHMED GORAR, J.--- On rejection of bail application by the learned Additional Sessions Judge, Kamber vide order dated 21.9.2015, applicant Dinal son of Pandhi Khan Gaincho has approached this Court for his release on bail in Crime No.03/2013 registered at Police Station Gaibi Dero, District Kamber-Shahdadkot, under sections 302, 148, 149, P.P.C.
2. According to the prosecution case, on 09.1.2013, at about 3.00 p.m. applicant/accused Dina Gaincho along with co-accused Sartaj Mirzani Chandio, Manthar Gaincho, Abdul Sattar Gaincho and two unidentified persons, all armed with K.Ks, intercepted complainant, his brother Rustam and relatives Imdad and Khan Mohammad at Bajak Mountain Dulan Naeen. It was further alleged that accused Sartaj fired at Complainant's brother Rustam on his chest, while all other accused persons also fired at Rustam in result whereof one fire hit in his leg and then the accused persons fled away. On the next day i.e. 10.1.2013 complainant Muhbat went to police station and lodged FIR at about 1230 hours. The background of incident as is appearing in the FIR is the old murderous enmity between the parties.
3. Learned counsel for the applicant contends that the applicant is innocent and has been implicated falsely due to enmity between the parties, which is evident from bare reading of the FIR; that it is co-accused Sartaj Chandio, who is alleged to have fired at deceased-Rustam on his chest; that the role attributed to the present applicant is that he and four others jointly fired at the deceased resulting in causing single injury on the leg of the deceased, which is a non-vital part of the body, that co-accused Abdul Sattar, whose case is identical to that of the applicant, was declared innocent by the police during investigation and his name was placed in column No-2 of the challan; that at this stage it cannot be said as to whose fire out of the five accused persons hit the deceased at his leg; that question of vicarious liability is a question, which can only be determined after recording evidence of prosecution side at trial, therefore, the case against the applicant calls for further enquiry; that so far the alleged absconsion of the applicant is concerned, the law is settled that if on merits there is a good case for grant of bail, mere absonsion should not come in the way of an accused for such concession. Learned Counsel in support of his arguments has relied upon the case of Jaffar v. The State (1980 SCMR 784), Shahmir v. The State (1994 PCr.LJ 2151), Muhammad Azam v. The State (2008 SCMR 249), Iqbal Ahmed v. The State (2006 MLD 1930) and Mitho Pitafi v. The State (2009 SCMR 299).
4. Conversely, the learned DPG has opposed the grant of bail to the applicant/accused on the ground that applicant was absconder and he along with other co-accused persons is involved in a heinous crime whereas specific role of making fire upon the deceased has been assigned to him, therefore, the applicant/accused is not entitled to grant of bail.
5. Despite last chance given to the Counsel for the complainant on the last date of hearing i.e. 23.12.2016, he has failed to put in appearance.
6. I have heard learned counsel for the applicant, learned DPG and perused the record.
7. On perusal of the contents of the FIR. and tentative assessment of the record, it appears that co-accused Sartaj has been assigned the role of firing at the deceased on his chest. Co-accused Abdul Sattar, whose role is identical to that of the applicant was declared innocent during investigation. The role of the applicant/accused is that he and four other accused persons, including let-off accused Abdul Sattar, fired upon the deceased thereby causing only injury on the leg of deceased, therefore, it is not clear as to whose fire out of the five persons hit the deceased on his leg. Even otherwise, there is lot of difference as to grievousness between the firearm injury on leg and that of on chest. In such circumstances, at, this stage the vicarious liability cannot be fixed upon the present applicant and the allegation against the present applicant cannot be considered as free from doubt and his involvement in the commission of the alleged offence need further enquiry. So far absconsion of the applicant is concerned, the law in the case of Mitho Pitafi (supra) is settled.
8. Cumulative effect of the above discussion is that the applicant/accused has made out a case for grant of bail. Accordingly, the applicant/accused is directed to be released on bail subject to furnishing surety in the sum of Rs. 300,000/- Rupees Three Lac only) with P.R. bond in the like amount to the satisfaction of trial Court.
9. It may be clarified here that if the applicant/accused misuses the concession of bail, the trial Court shall be at liberty to proceed for the cancellation of the bail as per law.
10. Needless to observe that the observations made hereinabove are tentative in nature and the trial Court shall not be influenced by any such observation and shall decide the case on the basis of available record and evidence produced.
11. WA/D-1/Sindh Bail granted.