ALI KHAN MARI Versus State
ORDER
AFTAB AHMED GORAR, J.--- Through instant Criminal Bail Application, the applicant/accused Ali Khan son of Abdul Khalique Mari, seeks post-arrest bail in Crime No.25/2019 registered at. Police Station, Ahmedpur, for offences punishable under sections 302, 114, 147, 148 and 149, P.P.C.
2. The facts of the prosecution case, in brief are that on 08.05.2019 complainant Muhammad Yakoob Mari lodged FIR at police Station Ahmedpur, stating therein that Abdul Khalique Mari and party were annoyed with him over the partition of agricultural land, whereas, on the day of incident, he along with his brother Fazal Muhammad, coustr. Ghulamullah, nephew Mumtaz were going to their lands, when it was 7:00 a.m., when they reached near the land of Abdul Khalique near village Yar Muhammad Mari, they saw and identified accused each one Ali Muhammad with Pistol, Ali Dino with hatchet, Ali Khan with lathi, Abdul Razak with Spade, Abdul Khalique empty handed (present applicant. Out of them, accused Abdul Khalique instigated his accomplices not t spare them, on his instigation, accused Ali Muhammad fired direct pisa 1 shot upon his brother Fazal Muhammad hit him on his face, who raised cries and fell-down on the earth; accused Ali Dino caused sharp side hatchet blow to Fazal Muhammad on his left side forehead; accuse Abdul Razak caused sharp sided Spade blow to Fazal Muhammad on left eyebrow and left forehead region, they raised cries, which attracted the area people, who rushed to the place of incident, hence on seeing them coining, all the accused persons escaped towards eastern side in the date palm gardens, hence such FIR was registered, as stated above.
3. The applicant on having been refused post-arrest bail by the Court of learned 3rd Additional Sessions Judge, Khairpur vide order dated 17.06.2020 hence he has preferred the instant bail application.
4. It is contended by learned counsel for the applicant/accused that the applicant/accused is innocent and has falsely been implicated in this case due to enmity over the landed property; that as per FIR the role of having lathi in his hand at the place of occurrence is attributed to the applicant/accused but he has not used the same in the commission of the alleged offence nor active role has been attributed against him; that all the P.Ws are related, inter se, hence they are setup and their version cannot be believed as trustworthy and confidence inspiring; that though the incident had taken place in the broad day hours in thickly populated area, but even no independent person from the locality has been associated as witnesses; that co-accused Abdul Khalique has been granted bail by this Court vide order dated 30.11.2020 hence, case of present applicant is at par to that of co-accused who has been granted bail; that the applicant/accused is in jail since date of his arrest i.e. 30.10.2019 and case has been challaned, no fruitful result will be achieved to keep the applicant/accused in jail for indefinite period, therefore, he prayed for grant of bail to the applicant/accused. In support of his contentions, he has relied upon the case of Nisar Ahmed and another v. The State (2005 PCrl.J 652)????????????? and Ghulam Hussain v. The State (MLD 1645??????????????).
5. Learned counsel for the complainant has opposed for grant of bail to the applicant/accused by contending that the applicant is nominated in the FIR with role that he was present at the place of wardat having lathi in his hand also facilitated to co-accused, Ali Muhammad, Ali Dino and Abdul Razak, who have brutally murdered deceased Fazal Muhammad by causing him pistol fire shot, hatchet, spade as well as injuries on his face and shared common intention, therefore, he is vicariously liable, thus he does not deserve for concession of bail. In support of his contentions, he has relied upon the cases of Ghulam Raza v. Khuda Bux and another (2005 SCMR 1904).
6. Learned Deputy Prosecutor General appearing for the State submits that no doubt applicant was present at the scene of occurrence having lathi in his hand but he did not use the same in the commission of alleged offence; that the applicant is behind bar since 30.10.2019 therefore, he recorded no objection for grant of bail to the applicant/ accused.
7. I have heard the learned counsel for the parties and perused the record. As per FIR, it is alleged that co-accused Ali Muhammad, Ali Dino and Abdul Razak, have committed the murder of deceased Fazal Muhammad by causing him pistol fire shot, hatchet and Spade injuries on his face, resultantly who died, however, the role attributed against the present applicant that he was present at the scene of occurrence having lathi in his hand but he did not use the same in the commission of alleged offence and he is not alleged to have caused any injury either to i the deceased or to the complainant party. At the most his case falls I under the scope of vicarious liability, which is to be determined by the trial Court after recording evidence. I am fortified by the case of Mumtaz Hussain and 5 others v. The State reported as (1996 SCMR 1126), wherein the Hon'ble Supreme Court of Pakistan on the identical and similar circumstances has been pleased to grant bail to the accused. Furthermore, the co-accused Abdul Khalique has been granted bail by this Court and case of present applicant is at par to that of co-accused who has been granted bail by this Court. In these circumstances the case against applicant/accused calls for further enquiry in terms of sub section (2) of section 497, Cr.P.C. Accordingly, the instant bail application is allowed and applicant/accused Ali Khan son of Abdul Khalique Mari is admitted to post-arrest bail subject to furnishing solvent surety in the sum of Rs.300000/- (Three lac) and PR bond in the like amount to the satisfaction of learned trial Court.
8. The observations made herein above are tentative in nature and would not prejudice the case of either party at trial.
SA/A-19/Sindh Bail granted.