KHURSHEED AHMED Versus State

ORDER

AFTAB AHMED GORAR, J.--- Through this bail application, the applicant/accused seeks post-arrest bail in Crime No.09/2018, Police Station Kadhan, District Badin, under sections 302, 324, 114, 504, 34, P.P.C., after dismissal of his earlier bail application vide impugned order dated 25-04-2018, passed by learned 2nd Additional Sessions Judge, Badin.

2. As per prosecution case, allegation against the applicant/accused is that on 07.03.2018, at his instigation, co-accused who were duly armed with Repeater and Guns committed murder of Younis, the brother of complainant by making straight fire shots.

3. Learned counsel for the applicant/accused has argued that the applicant has been falsely implicated in this case on the basis of enmity/dispute with the complainant. He further contended that no active role has been ascribed to the present applicant in the FIR; that during investigation, the police has released the applicant/accused declaring him as innocent and kept his name in Column-II; that the instant case has become on two stances as the complainant involves the applicant in the instant case whereas on the other hand, the police after investigation of the case, has let him off declaring as innocent, hence, the guilt of applicant/accused can only be determined at the trial; that the applicant is behind the bars and no more required for further investigation and no fruitful purpose would be served if the applicant is kept in Jail for an indefinite period while there are reasons to believe that the applicant has made the case against him to be of further inquiry. In support of his contentions, he relied upon cases reported in 2007 PCr.LJ 105, 2010 SCMR 611, 2012 SCMR 1137, 2016 SCMR 18 and 2018 PCr.LJ 42.

4. On the other hand, the counsel for the complainant has contended that sharing vicarious liability of applicant with the main accused is very much concerned in the instant case as on the instigation of applicant a human has lost his life, therefore, prima facie, case exists against the applicant under section 302, P.P.C., therefore, he does not deserve for concession of bail and prays for dismissal of his bail plea.

5. Learned D.P.G. for the State supported the contentions advanced by the counsel for the complainant. However, he admits that there is no active role of the applicant/accused.

6. I have considered the submissions advanced by the counsel for parties and have gone through the material available on the record as well as cited case laws.

7. Applicant/accused is nominated in the FIR with allegation of instigation to co-accused for committing murder, however, no active role of the applicant is alleged in the instant case, prima facie, his sharing vicarious liability with the main accused is a question, which can be determined by the trial Court during the trial. Mere involvement of an accused in the offence punishable with capital punishment falling within the ambit of prohibitory clause under section 497(1), Cr.P.C., does not exclude the accused from benefit of bail until and unless when there appear sufficient, grounds to establish his connection with the commission of the offence. It is worthwhile to mention that in the instant case, the investigation agency did not find any material against the applicant/accused after examining witnesses, hence, applicant was released and his name was kept in column-II in the charge-sheet. Furthermore, no fruitful purpose would be served to keep the applicant in Jail for an un-certain period as bail cannot be withheld as a punishment and no compensation can be presented to an innocent man for his unjustified incarceration. In the case of 'Tariq Zia v. The State' [2003 SCMR 958], the Hon'ble Supreme Court had granted bail to the accused who was booked with the allegation of raising "Lalkara" but not played any active role in the commission of the offence and was empty handed. The facts of the instant case are quite applicable.

8. Under the circumstances, I am of the view that the applicant has been able to make out the case for further inquiry as contemplated subsection (2) of section 497, Cr.P.C. Accordingly, applicant is admitted to bail subject to his furnishing solvent surety in the sum of Rs.1,00,000/- [rupees one hundred thousand only] and PR bond in the like amount to the satisfaction of trial court.

Criminal Bail Application stands disposed of.

MQ/K-25/Sindh Bail granted.