MUHAMMAD ASLAM alias PHOTO vs THE STATE

ORDER

1. ' Applicant Muhammad Aslam alias Photo is facing trial in case under sections 302, 34 and 114, P.P.C. Arising out of F.I.R. No,55 of 2000 Police Station Kandiaro.

2. ' The prosecution case as disclosed by complainant Abdul Aleem is that two months prior to this incident there was dispute between the complainant and the accused party. Such cases between them were registered and both the parties were sent up in Court. On the day of incident complainant and his cousin Sikandar Ali were going to village Sobedar. It is stated in the F.I.R. That accused Haji Madad Ali, Aslam alias Photo and Imdad were going ahead to them at a distance of about three Jaribs. Abdul Rasheed cousin of complainant was coming to his village and at about 6-30 p.m. When reached near the accused, he was attacked by them on the instigation of Imdad.

3. Present applicant/accused grappled with Abdul Rasheed and turned him down. Thereafter, accused Imdad took up pistol from the fold of his Shalwar and opened tire at him which hit the latter on his abdomen. The complainant and P. Ws. Challenged them. The accused thereafter decamped towards Banana garden. In the meantime P.W. Sadoro also reached at the spot who was apprised of the aforesaid incident. The injured was taken to Taluka Hospital, Kandiaro but on reaching there he died. The complainant thereafter proceeded to police station and lodged the report.

4. ' The police registered F.I.R. And took up investigation. The police after completing the investigation submitted the challan in the Court.

5. ' It is contended by the learned counsel that co-accused Haji Madad Ali has been granted bail by the trial Court in similar circumstances. The fight was not premeditated but it was sudden flare-up.

6. The applicant was not armed with any weapon. It was not necessary to cause the fall of deceased on the ground before he could be tired at. It is submitted that the enmity between the parties is admitted in the F.I.R. And false implication of present applicant on that account cannot be overruled. The case of applicant requires further enquiry as contemplated by section 497(2), Cr.P.C.

7. As no overt act has been attributed to him and no reasonable ground appears to believe that the present applicant had participated in the commission of offence. Reliance has been placed upon the case of Ali Asghar and another v. The State PLD 1985 Kar. 609, Wali Muhammad v. The State 1999 PCr.LJ 1874 and Ibrahim v. The State 1999 PCr.LJ 941.

8. ' Mr. Mumtaz Ali Siddiqui, learned counsel for the complainant has opposed the bail plea of accused on the ground that enmity between the parties cannot be taken into consideration at bail stage. The present applicant .Had facilitated the main accused who tired at deceased. This is a day time incident and the prosecution case is supported by the ocular evidence and the incident is recent one.

9. ' Mr. Gul Bahar Korai, learned counsel appearing for the State has also opposed the bail plea of the accused on similar grounds.

10. The perusal of record reveals that parties were on inimical terms with each other. Such cases were pending in the Court. The applicant was neither armed with any weapon nor he caused injury to deceased. Nothing incriminating was recovered from his possession. In the present circumstances of the instant case, it was hardly required for present accused to throw the deceased down before he could be fired at by co-accused. It appears that the main accused had picked up pistol all of a sudden from the fold of his Shalwar. The presence of applicant at the site is yet to be established so also his knowledge about the main accused being armed with pistol. In this view of the matter applicability of section 34, P.P.C. Is yet to be determined at the time of trial. The enmity was admittedly existing between the parties prior to the incident. The question of participation of accused in the commission of offence needs further enquiry in the matter. Reference can be had to. The cases of Bisharat Hussain v. Ghulam Hussain 1978 SCM R 357, Shahid v. The State 1994 SCM R 393, Muhammad Haroon v The State 1994 SCM R 2161, Mahmood Akhtar and another v. Haji Nazir Ahmed and 4 others 1995 SCM R 310 and Javid lqbal v. The State 1986 M LD 2665.

11. The applicant/accused is granted bail on furnishing surety in the sum of Rs,2,00,000 and P.R. Bond in the like amount to the satisfaction of the trial Court.