ZOOR ZAMEEN GUL S/O ZAREEN GUL & ANOTHER (Applicant) VS THE STATE (Respondent)

ORDER SHEET

IN THE HIGH COURT OF SINDH AT KARACHI

Cr. B.A. No.613 of 2018

DATE

ORDER WITH SIGNATURE(S) OF JUDGE(S)

1. FOR ORDER ON OFFICE OBJECTION AT

FLAG ‘A’

2. FOR HEARING OF BAIL APPLICATION

Mr. Ajab Khan Khattak, advocate for applicants

Mr. Zahid Iqbal, advocate for complainant

Mr. Sagheer Abbasi, APG

ORDER

Abdul Maalik Gaddi, J.

Through this Bail Application, the applicants are seeking post arrest bail in case FIR No.294/2017 dated 22.7.2017 registered under Sections 302/324/34 PPC at PS SITE-A, Karachi (West).

The applicants Zoor Zameen Gul son of Zameen Gul and Muhammad Yousuf son of Zoor Zameen Gul have approached this Court after the dismissal of their applications for post-arrest bail by the learned VIIIth Additional Sessions Judge, Karachi (West) vide Order dated 19.4.2018.

The brief facts of the case are that on 22.7.2017, the complainant Abrar son of Noor Badshah lodged the above FIR on the fact disclosed to him by Mst. Shabina that at about 0530 hours accused Zoor Zameen Gul along with co-accused Muhammad Yousuf and Muhammad Ishaq all being armed with weapons and in furtherance of their common intention came at the house of Mst. Shabina and therefore, in presence of the applicants/ accused, accused Muhammad Ishaq firstly fired and killed Arshad Khan by fire arm injury and then critically injured Mst. Shabina on account of the fact that couple contracted love marriage against the wishes of her family.

Learned counsel for applicants/ accused submitted that the case against applicants/ accused is false and has been registered due to matrimonial dispute. He further submits that though the present applicants/ accused allegedly present at the time of incident with pistols along with main accused Muhammad Ishaq but they did not use the weapon against the injured or deceased. He further submits that under this situation, Hon’ble Supreme Court in number of cases has granted bail to the accused persons, in which they did not use the weapon in the commission of the crime even otherwise nothing was recovered from applicants and they are in custody since their arrest. According to him the question of vicarious liability, if any in this case, is concerned, the same could be established only after recording of evidence till then according to him it is fit case for further inquiry in to the guilt of the applicants. In support of his case, he has relied upon the following case laws:

(i)

SCMR 1543 – Subeh Sadiq alias Saabo alias Kalu vs. The State and others (ii)

MLD 745 – Tarique and 3 others vs. The State

(iii)

PCrLJ 38 – Shabir alias Ghulam Shabir vs. The State

(iv)

MLD 21 – Muhammad Nawaz and others vs. The State

Learned APG assisted by learned counsel for complainant has opposed this bail application on the ground that the names of the applicants/ accused are appearing in FIR with specific role that at the time of incident they were available at the place of incident duly armed with pistol and facilitated co-accused Muhammad Ishaq to commit murder of Arshad Khan and caused fire arm injury to Mst. Shabina, therefore, they are not entitled for any relief. They further submit that in this matter, challan has been submitted in which 13 witnesses have been shown and out of them, only 03 witnesses have been examined. Therefore, at this stage, if applicants/ accused are granted bail, the complainant party would be seriously prejudiced. However, in support of their arguments, they relied upon the following caselaws:

(i)

SCMR 1092 – Munawar vs. The State

(ii)

SCMR 1023 – Ghulam Nabi vs. The State

(iii)

YLR 1595 – Alam Zar Khan vs. The State and another

(iv)

MLD 1220 – Ahsan-ul-Haq vs. The State and another

Parties’ advocates have been heard and record perused.

It is an admitted fact that there is a dispute in between the parties over matrimonial affairs. No doubt, the names of the applicants/ accused are appearing in FIR with allegation that at the time of incident, present applicants/ accused were armed with pistol along with co-accused Muhammad Ishaq, but no over act has been assigned to the applicants/ accused. According to the FIR, applicants have merely accompanied co-accused Muhammad Ishaq, who fired and caused fatal injury to the deceased Arshad Khan and caused fire arm injury to PW Mst. Shabina. During the course of arguments, I have specifically asked the question from learned APG and learned counsel for complainant whether during incident, these applicants/ accused have caused any fire arm injury to deceased or injured of the case. They replied in negative.

As per police papers, it appears that the allegation of causing fire arm injury to deceased as well as to injured is against accused Muhammad Ishaq who is absconder. Since these applicants/ accused have not caused any fire arm injury either to deceased or injured, therefore, it appears that they have not played any active role in the commission of offence.

As far as, the question of vicarious liability is concerned, same can be established only after recording of evidence. In this matter charge has been framed and 03 witnesses namely PWs Abrar, Shabina and Farid have already been examined and there remain 10 witnesses more to examine in this case and it is not known when the trial would be completed. Certainly, it will take some time, therefore, applicants cannot be detained in jail for indefinite period till then the case of applicants comes within the ambit of Sub-Section (2) of Section 497 CrPC (further inquiry). Under these circumstances and in view of caselaws cited by learned counsel for applicants, I am inclined to grant bail to applicants/ accused. Accordingly, applicants are granted bail in the above case upon their furnishing solvent surety in the sum of Rs.2,00,000/- each and PR bond in the like amount to the satisfaction of the trial Court. Caselaws cited by learned counsel for complainant have been perused and considered by me but did not find applicable to the facts of the present case. Be that as it may, it is worthwhile to mention here that the precedents in bail matters are of no help to a party, as it varies from case to case depending upon the facts of each case and the Court has to examine as to whether applicants/ accused has made out a case of further inquiry or not. In this respect, I am supported with the cases of Muhammad Faiz alias Bhoora v. State [2015 SCMR 655] and Muhammad Imran v. The State [2016 SCMR 1401].

Needless to mention here that any observation if made in this order is tentative in nature and shall not effect the merits of the case. It is made clear that in case if during proceedings the applicants/ accused misuse the bail, then trial Court would be competent to cancel the bail of the applicants after due notice to them. Since in this case 03 witnesses have been examined, therefore, trial Court is directed to proceed the matter expeditiously and decide the same within the period of 03 months after receipt of this Order. No unnecessary adjournment shall be granted to either side. Compliance report be submitted to this Court through MIT-II.

Judge

asim/pa