NAZEER Versus State

ORDER

KHADIM HUSSAIN TUNIO, J.--- Applicant/accused Nazeer Qambrani Chandio was refused concession of post arrest bail in Crime No.215/2013 of Police Station Khairpur Nathan Shah, District Dadu, under sections 302, 504, 114, 34, P.P.C. by the learned 1st Additional Sessions Judge, Mehar vide order dated 16.09.2015, therefore, he has approached this Court with the same request.

According to the case of prosecution, on 21.12.2013, the applicant/accused along with his accomplices, namely, Basar alias Qaisar, Imtiaz, Sattar, all by caste Qambrani Chandio, being armed with pistols, spotted complainant Nabi Jurio Khoso, his sons, namely, Liaquat Ali, Imdad Ali and nephew Mumtaz Ali at about 1200 hours, near the shop of Haji Abbas Khoso situated in the northern side street of Nisar Cinema, K. N. Shah town. It is alleged that at the instigation of applicant/accused, co-accused Basar alias Qaisar, Imtiaz and Sattar fired at Imdad Ali son of complainant, who succumbed to the injuries while being taken to Larkana for treatment. The motive behind the offence as is setout in the FIR appears to be that complainant's another son, namely, Zulfiqar Ali had contracted love marriage with one Mst. Gulshad, sister of co-accused Basar alias Qaisar.

Mr. Azizullah M. Bruiro, learned Counsel for the applicant. contents that as per FIR though the applicant is shown to be armed with pistol, yet he is not alleged to have fired at the deceased. He further contends that there is inordinate delay of two days in lodging the FIR without any explanation. Learned Counsel submits that the role of firing at deceased Imdad Ali is attributed to co-accused and the role of instigation only has been assigned to the applicant. Learned Counsel contends that the question of vicarious liability or sharing the common intention is to be determined at trial and case against the applicant requires further inquiry, therefore, the applicant is entitled to the concession of bail. In support of his contentions, learned Counsel relied upon the cases reported as Mumtaz Hussain and 5 others v. The State (1996 SCMR 1125) and Shabbir v. The State (2003 MLD 1715).

4. On the other hand, Mr. Mohammad Sharif Awan, learned Counsel for the complainant, vehemently opposed the bail application and contended that: the incident is of broad daylight, the applicant is nominated in the FIR and at his instigation the complainant of complaint has been murdered, which reflects that he has shared common intention in the commission of alleged offence, therefore, he is not entitled for concession of bail.

5. Mr. Sardar Ali Shah, learned Assistant Prosecutor General, however, conceded for grant of bail to the applicant, on the ground that the role assigned to the applicant is only of instigation, which requires further inquiry.

6. I have heard learned Counsel for the parties, perused the contents of the FIR and other material collected during investigation and have gone through the case law cited at the bar.

7. No doubt, the present applicant is nominated in the FIR and he is also shown to be armed with pistol at the time of occurrence, yet he is not alleged to have fired at the deceased and the role attributed to him is that he only instigated the co-accused. It is not understandable that when all the accused persons including the present applicant were armed with pistols, what were the circumstances, which forbade the applicant from firing at the deceased and he only played the role of instigating others. Enmity between the parties is admitted in the FIR. It is well-settled principle of law that the enmity is double-edged weapon, which cuts both ways. The applicant is not alleged to have fired either at the complainant or any of the P.Ws, or even in the air. Moreover, the delay of two days in lodging the FIR has not been accounted for plausibly by the complainant. In view of the dicta laid down in the case of Qurban Ali v. The State and others (2017 SCMR 279), the question of vicarious liability or sharing of common intention would be determined after recording pro and contra evidence at trial and the case against the applicant in view of the role attributed to him in the alleged occurrence appears to be of further enquiry. The applicant is in jail for the last more than 3 years.

8. In view of the above facts and circumstances, this bail application is allowed. The applicant is directed to be released on bail subject to his furnishing solvent surety in the sum of Rs.500,000/- (Rupees Five Lac only) and P.R bond in the like amount to the satisfaction of the trial Court.

9. It goes without saying that the observations recorded hereinabove are tentative in nature and the trial Court without being influenced therefrom in any manner, shall proceed with the case and decide the same purely on merits.

WA/N-15/Sindh Bail granted.