IN THE HIGH COURT OF SINDH, CIRCUIT COURT, LARKANA.
Cr.Bail Appln. NO: 10 of 2009.
1. For orders on M.A No.22 /2009.
2. For Hearing.
Mr.Anwar Ali Shaikh, advocate for the applicant.
Mr.Muhammad Akram Shaikh, State Counsel.
KHADIM HUSSAIN M.SHAIKH,J.:- The applicant has sought bail in Crime NO.43/2008 of P.S Garhi Yasin registered for an offence U/S 302, 148, 149, 337-H(2), 114 PPC. The bail plea advanced by the applicant before the trial Court was declined vide order dated 06.11.2008.
Briefly the facts of the prosecution case are that on 22.5.2008 at 1330 hours the complainant Ghulam Serwer Marfani lodged F.I.R being Crime NO.43/2008 of P.S Garhi Yasin stating therein that he is a contractor. The house of Altaf Marfani and accused persons is adjacent to each other. The complainant further stated that prior to lodging of the F.I.R, Altaf came on the roof of his house, hence his son Ghulam Abbas asked him that as to why he has come on the roof, hence harsh words were exchanged between them. On the day of the incident he, his son Ghulam Abbas aged about 30 years and Ghulam Hyder, relative Siraj S/O Haji Ferozuddin had gone to their land. AT about 7.30 a.m they saw and identified the accused namely 1.Ayaz S/O Gul Bahar, 2.Altaf S/O Nazir Ahmed 3.Deedar, 4.Dildar both sons of Kouro, 5.Shabir S/O Gul Bahar, 6.Gul Bahar S/O Ayaz 7.Abdul Nabi S/O Deedar, all by caste Marfani armed with K.Ks R/O Own houses near Misri Wahan Taluka Garhi Yasin and three unknown persons who were not previously known armed with guns, came there. As soon as they come, accused Deedar instigated other accused not to spare Ghulam Abbas and commit his murder, on whose instigation accused Ayaz S/o Gul Bahar, Altaf S/O Nazir Ahmed, Deedar S/O Kouro fired from their respective weapons at his son Ghulam Abbas, which hit him who fell down by raising cries. The complainant party raised cries of murder-murder on which many people came running there and the accused seeing them made their escape good towards eastern side. Later, the complainant and P.Ws went over and saw Ghulam Abbas who had received firearm injuries on different parts of his body viz. on his left shoulder through and through, on right arm, one hole on the hand, two hoes on arm, one injury on elbow and other parts of body who was seriously injured. It is further stated by the complainant that he immediately shifted his injured son to Shikarpur Hospital where he was provided first aid who was subsequently referred to Larkana Hospital where he died during treatment. Thereafter complainant took the dead body of his deceased son in the Ambulance and left at Taluka Hospital Garhi Yasin where he left the above P.Ws over the dead body and then appeared at Police Station and lodged such F.I.R to the above effect.
It is further case of the prosecution that on the following day i.e. 23.5.2008 complainant recorded his further statement wherein alongwith other accused he disclosed the name of present applicant to be one of the companions of the accused. It is alleged in the further statement of complainant that the accused was armed with gun so also the P.Ws namely Siraj and Ferozuddin have stated in their 161 Cr.P.C statements recorded on the following day of registration of the F.I.R.
It is case of the prosecution that the applicant was only allegedly armed with gun but he is not alleged to have any fire from his gun. He is not even alleged to have caused any injury either to the deceased or to any of the P.Ws.
Learned counsel for the applicant has mainly contended that the name of the applicant does not find place in the F.I.R despite the fact that the applicant is hailing from the same village and was already known to the complainant party. He has further argued that the name of the applicant was taken by the complainant in his further statement recorded on the following day i.e. 23.5.2008 after consultations and deliberations. He has further contended that the statement U/S 161 Cr.P.C of the prosecution witnesses were also recorded on the following day i.e. 23.5.2008 and such delay in recording statements U/S 161 Cr.P.C have not been explained by the prosecution. He has contended that no overt act is attributed to the present applicant excepting his presence on the place of incident that too not in the F.I.R but in the further statement of the complainant. It is contended by the learned counsel that even in further statement it is alleged that, while leaving the scene, all the accused had made firing in the air but this fact stands falsified by the fact that no empty cartridge was secured from the place of incident. It is further contended by him that no recovery of gun has been effected from the applicant although he remained in custody under the remand for 7 days. Therefore, his case requires further inquiry. In support of his contentions, learned counsel for the applicant has relied upon the following case laws:
1, Muhammad v. The State (1998 SCMR 454).
2. Faraz Akram v. The State (1999 SCMR 1360).
3. Hyder v. The State (1990 P.Cr.L.J 70).
4. Unreported authority in Cr.B.A.No.314/2004 passed by this
Court on 17.06.2004.
Mr.Mohammad Akram Shaikh, learned counsel for the State, has candidly conceded to the arguments advanced by the learned advocate for the applicant and has raised no objection to the grant of bail to the applicant.
I have carefully considered the arguments so advanced by the learned counsel for the parties and have also gone through the police papers with the assistance of learned State Counsel.
The name of the applicant does not appear in the F.I.R and he was named by the complainant inhis further statement on 23.5.2008. Even no over act is attributed to the applicant in further statement recorded by the complainant. In the vague end of the said statement, it is alleged that all the accused made firing in the air. The applicant was allegedly armed with gun but no empty cartridge was secured from the place of incident. Even no recovery of gun has been effected from him.
In view of the above discussion, I am of the considered view that the case of applicant is covered U/S 497(ii) Cr.P.C which entitles him to the concession of bail as his involvement requires further inquiry into his guilt and his vicarious liability about his mere presence at the place of incident could be considered and determined during the trial. Therefore, bail is granted to the applicant in the sum of Rs.200,000/= subject to furnish solvent surety and P.R bond in the like amount to the satisfaction of learned trial Court.