2019 M L D 1505
[Balochistan]
Before Abdullah Baloch, J
NAJEEBULLAH ---Applicant
Versus
The STATE--- Respondent
Criminal Bail Application No.128 of 2019, decided on 10th April, 2019.
Criminal Procedure Code (V of 1898) ---
----S. 497 ---Penal Code (XLV of 1860 ), Ss. 302 & 34--- Qatl-i-amd, common intention---
Bail, grant of ---Further inquiry---Common intention ---Scope ---Mere presence of the
petitioner was alleged in the FIR ---Complainant, however, through supplementary statement,
attributed role of controlling the deceased by the petitioner ---Record revealed that though the
petitioner had been nominated in the F.I.R, but no role of firing was attributed to him ---
Petitioner was, admittedly, empty handed at the place of occurrence , while as per the
Medical Rep ort the deceased had received bullet injuries ---Contents of FIR showed the
presence of the petitioner at the place of occurrence, but the same was silent with regard to
any kind of role played by the petitioner , which alone had made his case that of further inquiry in order to ascertain as to whether the petitioner had common intention and common object to commit the crime or his presence was unintentional ---Complainant, through
supplementary statement, had attributed to the petitioner, a role of controlli ng the deceased
but the complainant had failed to disclose as to why he had not mentioned the role of the petitioner in the first information report --- Such role assigned to the petitioner subsequently
through supplementary statement created a reasonable d oubt about his participation in the
commission of offence ---Tentative assessment of record prima facie suggested that it was a
case of further inquiry---Investigation in the matter had been completed, trial had commenced and the petitioner was no more required for the purpose of investigation or probe ---Keeping petitioner behind the bars would not serve any fruitful purposes; he was
admitted to bail, in circumstances.
Allah Ditta v. The State and another 2014 PCr.LJ 658 ref.
Asmatullah Khan Tareen for App licant.
Saeed Ahmed Kakar, State Counsel.
Date of hearing: 8th April, 2019.
ORDER
ABDULLAH BALOCH, J. ---This order disposes of Crl . Bail Application No.128 of
2019 filed by the applicant (accused) Najeebullah son of Saifullah, seeking bail after arrest,
in case FIR No.201 of 2018, Police Station Saddar Loralai, under Section 302, 34, P.P.C.
2. Facts of the case are that on 22nd Novem ber 2018, the complainant Abdul Latif son
of Haji Abdul Khaliq lodged above FIR, stating therein that on the preceding day i.e. 21st November 2018 his cousin Muhammad Shah was fitting sewerage pipe in his Block Factory located at Quetta road Loralai near D ar-ul-Aloom Madrisa, when accused namely
Muhammad Rasool, Haji Habibullah and Najeebullah (applicant) attacked upon him. His
cousin Muhammad Shah in order to save his life ran away to the shop of Haji Abdul Khaliq,
but the accused persons being armed with pistols entered in the said shop, where the accused
Muhammad Rasool and Haji Habibullah made firing upon him by means of pistol, due to which his cousin received grievous injuries, whereafter the injured was shifted to Civil Hospital and subsequently to Quetta, but he succumbed to his injuries. According to the complainant the incident was witnessed by Muhammad Yaqoob and Ashraf.
3. After usual investigation, the applicant (accused) was arrested, who faced the
investigation and on completion thereof was cha llaned before the trial Court i.e. Sessions
Judge, Loralai. In the meantime, the applicant (accused) filed an application for grant of bail in the trial Court, but the same was declined, vide order dated 26th March 2019. Whereafter, instant application has been filed.
4. Learned counsel for applicant (accused) contended that the FIR was lodged after
unexplained delay of one day; that the contents of FIRs shows that though the presence of the applicant (accused) was shown, but no any role of firing, threatening, warning and Lalkara was ascribed to him, while subsequently after deliberation and consultation through supplementary statement the complainant attributed a role of controlling to the deceased by the applicant, hence the case of prosecution is one of further inquiry in order to ascertain whether the applicant (accused) had participated in the crime or otherwise; that if the entire case of prosecution is admitted in toto even then no case at all is made out against the applicant (accused); that no crime weapon whatsoever in nature is required to be effected
from the possession of the applicant; that the applicant (accused) is a juvenile, who otherwise had no information about registration of case and his nomination in the same; that investigation in the matter has been completed by the Investigating Agency by submitting
challan in the trial Court, thus the applicant (accused) is no more required for the purpose of investigation or probe, as such, his further detention would not serve any fruitful purposes ,
thus entitled to be released on bail.
5. Learned State Counsel has strongly opposed the contentions so advanced by the
learned counsel for the applicant (accused) and contended that the applicant (accused) has been nominated in the promptly lodged FIR, w ho with the furtherance of common intention
of remaining armed accused persons arrived at the place of occurrence and committed the
murder of deceased, hence the arrival of the present applicant (accused) with the remaining
armed accused persons establishes his common intention/object and mens rea for committing the crime. Even otherwise, through supplementary statement the applicant (accused) has been ascribed the specific role of controlling the deceased, hence not only the record of the case suggests his presence, but also his participation in the crime; that the applicant (accused) has
been charged for offence, which is not only heinous and non- bailable, but also it carries
punishment for Death or life, thus in no way he is entitled for grant of bail.
6. Heard the learned counsel for parties and perused the available record minutely.
Perusal of record reveals that though the applicant (accused) has been nominated in the FIR, but the fact remains that no any role of firing was attributed to him. According to own case of the prosecution the applicant (accused) was empty handed at the relevant time, while as per the Medical report the deceased had received bullet injuries on his person. Though the contents of FIR are showing the presence of the applicant (acc used) at the place of
occurrence, but the same is silent with regard to any sort of role that was played by the applicant (accused). This fact alone makes it a case of further inquiry in order to ascertain as to whether the applicant (accused) had common i ntention and common object to commit the
crime or his presence was unintentional.
7. It has also been observed that the complainant through supplementary statement has
attributed a role of controlling to the deceased by the present applicant (accused), but
presently the complainant has failed to disclose as to why he has not mentioned the role of this applicant (accused) in the First Information Report. Such role assigned to the present applicant subsequently through supplementary statement creates a reasonable doubt about his participation in the commission of instant offence. Reliance in this regard has been taken
from the case titled Allah Ditta v. The State and another 2014 PCr.LJ 658, wherein it has been held that whenever no overt act is ascribed to the applicant (accused), the superior courts are lenient towards admitting him to bail. According to the consistent view of the Hon'ble Supreme Court of Pakistan that when the case against the accused is covered under subsection (2) of section 497, Cr.P.C. he is entitled to the concession of bail as a matter of right.
8. The tentative assessment of record prima -facie suggests that it is a case of further
inquiry. Besides, investigation in the matter has been completed, trial commenced and admittedly the appli cant (accused) is no more required for the purpose of investigation or
probe. Thus, keeping him behind the bars would not serve any fruitful purposes.
For the above reasons, the application is allowed. The applicant (accused)
Najeebullah son of Saifullah, is ordered to be released on bail, subject to furnishing bail
bonds in the sum of Rs.500,000/ - (Rupees Five Hundred Thousand) with P.R. bonds of the
like amount to the satisfaction of trial Court or Additional Registrar of this Court.
The observations ma de hereinabove are tentative in nature and the same shall not
influence the merits of the case.
MQ/22/Bal. Bail granted.This judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
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