RASOOL BUX Versus State
ORDER
ABDUL MAALIK GADDI, J.--- Having remained unsuccessful in obtaining his release on bail from trial court in Crime No.03/2016 registered under sections 302, 324, 147, 148, 149, 114, P.P.C. at Police Station Rajiri, now the applicant/accused Rasool Bux son of Anb Khoso is seeking his release on bail through instant bail application.
2. Facts of the case in nutshell as unfolded in the FIR are that on 30.11.2016 complainant Zulfiqar Ali lodged FIR at Police Station Rajiri, stating therein that a dispute was going on over measurement of land between his community and Elmuddin and others. On 29.11.2016, he along with his brother Noor Ali, uncle Piyaro aged about 50-years. cousin Uris Ali aged about 35-years, Sain Bux son of Huzoor Bux aged about 50-years, Jamal son of Huzoor Bux and Zakir Hussain son of Fazal Khan were working the land with tractor. Meanwhile, Elmuddin with Kalashnikov, Talib with Kalashnikov, Ali Muhammad with gun, Golai alias Kok Ali with hatchet all sons of Qurban Khoso, Sahib Ali with Kalashnikov, Ali Banho with gun both sons of Kevro Khoso, Talib son of Ghulam Rasool with gun, Motio son of Jan Muhammad with hatchet and Rasool Bux son of Anb with pistol came there at 2.30 p.m and restrained them from working in the lands. The complainant party asked them that a faisla in respect of the land has already been made and once again they are ready for any faisla, hence they may be allowed to work in the lands, to which Elmuddin instigated others not to spare the complainant party and he issued Kalashnikov fires upon Piyar Ali the uncle of the complainant, which hit him on his chest and both abdomens. Talib issued Kalashnikov fires upon Uris Ali, which hit him on his chest and hand and he also fell down on the ground while crying. Sahib Ali issued straight fires of Kalashnikov upon Sain Bux, which hit him on his left thigh. Golai alias Kok caused hatchet back to PW Jamal Khan on his right leg foot joint. Motio caused hatchet blow on the back of PW Jamal. Talib son of Ghulam Rasool issued gun fire shot upon complainant, he fell down on the ground and such fire hit to Elmuddin and accused taking Elmuddin while firing", in the air went away towards Southern side. Thereafter, dead bodies and injured were taken with the help of the relatives to LUMHS, Jamshoro and also informed to police. Sain Bux succumbed to the injuries in hospital. Police came in the hospital and issued letters for medical treatment of the injured and postmortem of dead bodies. After burial and funeral ceremonies, complainant lodged FIR that accused with deadly weapons due to dispute over the measurement of lands, in furtherance of their common object, committed murder of Piyaro, Uris and Sain Bux and severely injured Jamal, hence this FIR.
3. It is contended by the learned counsel for the applicant/accused that the applicant/accused is innocent and has falsely been implicated in this false case by complainant due to established and admitted enmity between the parties over the land and in this respect the parties were remained busy into certain litigations before the concerned court and also the complainant party earlier co-accused Sahib Ali son of Kewro lodged the FIR bearing Crime No.01/1999 at Police Station Rajiri under sections 302, 324, P.P.C. against the complainant party, whereby the relative of the applicant/ accused Jam Khan was murdered by the co-accused Major Murad Khoso and further two more cases were also lodged by the complainant against the applicant/ accused bearing Crime Nos. 07/2011 and 08/2011 at Police Station Rajri, wherein entire family members were implicated, however, the applicant/accused party were acquitted in both cases on 24.09.2017 by the learned lst Civil Judge and Judicial Magistrate, Kotri; that the son of the co-accused Elmuddin lodged the FIR bearing Crime No. 06/2016 at Police Station Rajri under sections 324, 147, 148, 149, 114, 337-H(2), 504, P.P.C., wherein he mentioned that accused Zulfiqar Ali and others leading by Murad alias Major Khoso famous dacoit attacked upon the applicant/accused party on 29.11.2016 at about 0230 hours, resultantly the co-accused Elmuddin sustained fire arm injury on his neck and his entire body became paralyzed, however, he was admitted in LUMHS Hyderabad and thereafter, MK Hospital Hyderabad; that since the police as well as M.S LUMHS failed to provide proper treatment to the injured Elmuddin as such being dissatisfied from not providing proper treatment to the injured Elmuddin, the mother of injured namely Mst. Amnat filed C.P No.D-3431/2016 against the respondents and M.S. LUMHS, however, this court issued directions on 09.12.2016 to the Investigating Officer as well as M.S. to provide requisite treatment to the injured Elmuddin; that the FIR is delayed by more than one day and such delay in lodging FIR is sufficient time to implicate any innocent person after making the consultation; that there are counter FIRs against the complainant and accused party and in the counter cases only point is to be taken into consideration that who is aggressor and who is the aggressed and this point can only be resolved at the time of trial after examination of witnesses; that no specific role has been assigned to the applicant/ accused; that in the counter case being Crime No.06/2016 of Police Station Rajri all the accused persons have been granted bail; that the applicant/ accused was arrested on 08.12.2016 since then for more than two years he is behind the bars and no substantial progress has been made in trial. Under these circumstances, learned Counsel for the applicant while relying on the cases of Shoaib Mehmood Butt v. Iftikhar-ul-Haq and 3 others (1996 SCMR 1845), Ali Sheharyar v. The State (2008 SCMR 1448), and Qurban Ali v. The State and others (2017 SCMR 279), has prayed for grant of bail to the applicant/accused.
4. Conversely, learned A.P.G. for the State has opposed the bail application and argued that applicant/accused is well nominated in the FIR; that the applicant/accused voluntarily produced crime pistol before the police: that the vicarious liabilities lies upon present applicant/accused and; that this is a case of capital punishment, therefore, he is not entitled for the concession of bail.
5. I have given my anxious thought to the contentions raised at the bar and have gone through the case papers. No doubt the name of the applicant is appearing in FIR with allegation that at the time of incident he was available at the place of incident with pistol but at the same time it also appears from the record that during incident he did not use the pistol against the complainant or deceased persons. It appears from the record that deceased persons died due to firearm injury caused by other accused nominated in the present FIR. So far the alleged recovery of pistol at the instance of applicant/accused is concerned, though it is denied by the Counsel for the applicant/accused, however, this aspect of the case could also be considered at the time of trial whether the alleged recovery of pistol was made at the instance of present applicant/accused or otherwise.
6. In my opinion, insofar as the issue of common intention is concerned, it is now well settled that at bail stage the same is normally one of further inquiry unless there are other compelling reasons and circumstances to reach a different conclusion i.e. by way of other pieces of evidence. In the present case as observed above the applicant/accused though armed with pistol but he did not use the same against the complainant or deceased persons, therefore it is yet to be determined at the time of trial as to whether the applicant/accused having any intention to kill deceased persons, till then the case of present applicant/accused requires further inquiry.
7. It is stated by the learned Counsel for the applicant/accused that the case under Crime No.06/2016 of P.S Rajiri is counter case of present case being Crime No.3/2016 of Police Station Rajiri. According to him, all accused in Crime No.06/2016 of Police Station Rajiri have been granted bail. When confronted this fact to learned A.P.G., she did not reply properly, however, she submits that the present applicant/accused was arrested on 08.12.2016. It means that two years have been passed and this applicant/accused is behind bar and no substantial progress has been made in trial.
8. There being grounds of further inquiry under Section 497(2), Cr.P.C, at this stage the bail application is allowed. Applicant/accused is directed to be released on bail subject to his furnishing solvent surety in the sum of Rs.2,00,000/- (Rupees two lacs) and P.R Bond in the like amount to the satisfaction of Trial Court.
9. Needless to mention here that the observations made hereinabove are tentative in nature and the trial Court shall not be influenced by it while deciding the case on merits.
10. It is also made clear that in case during proceeding of the trial, if applicant/accused misuses the concession of bail, the trial court would be competent to cancel the bail of the applicant/accused without making any reference to this court.
MQ-R-15-Sindh Bail allowed.