2021 M L D 392
[Balochistan]
Before Abdullah Baloch, J
SULEMAN SHAH ---Applicant
Versus
The STATE--- Respondent
Criminal Bail Application No.72 of 2020, decided on 16th March, 2020.
(a) Criminal Procedure Code (V of 1898) ---
----S.497--- Penal Code (XLV of 1860), Ss. 302 & 34---Qatl -i-amd and common intention ---
Bail, grant of ---Absconsion ---Scope ---Prosecution case was that the accused was present
along with two co- accused persons, who fired and killed two persons ---Accused was
nominated in the FIR but no role of firing was attributed to him ---FIR was also silent as to
whether the accused was armed or not ---Witnesses, in their statements under S.161, Cr.P.C.,
had although alleged that the accused was equipped with fire arm and had murdered the
deceased persons but such role was not ascribed to the accused in the FIR ---Bail could be
granted if the accused had a good prima facie case for bail on merits and his absconsion would not come in the way while granting bail ---Petition for grant of bail was allowed, in
circumstances.
Mitho Pitafi v. The State 2009 SCMR 299 rel.
(b) Penal Code (XLV of 1860)---
----Ss. 34 & 149--- Common intention--- Common object ---Scope ---Mere presence of an
accused at the time of commission of crime is not enough to hold him responsible for commission of crime, unless the prosecution succeeds in establishing that the accused had also shared common intention or common object with his co- accomplices or helped or
facilitated them in the crime.
(c) Criminal Pro cedure Code (V of 1898) ---
----S.497--- Penal Code (XLV of 1860), Ss. 302 & 34---Bail ---Qatl- i-amd and common
intention--- No overt act ascribed to accused ---Scope ---Whenever no overt act was ascribed to
accused, lenient view was required to be taken towards the accused for granting him the
concession of bail.
Muhammad Khan alias Muhammad Bux v. The State 2015 PCr.LJ 69 and Muhammad
Tanveer v. The State 2014 PCr.LJ 1096 ref.
Karam Khan Bazai for Applicant.
Mis Shumaila Iftikhar, State Counsel.
Muhammad U sman Yousafzai and Matiullah Kakar for the Complainant.
Date of hearing: 12th March, 2020.
JUDGMENT
ABDULLAH BALOCH, J .---This order disposes of Criminal Bail Application
No.72/2020 filed on behalf of applicant (accused) Suleman Shah son of Khan Muhammad,
for grant of bail after arrest in FIR No.149 of 2011 dated 26th August 2011, at Levies Thana
Chaman, under Sections 302 and 34, P.P.C.
2. Facts of the case are that on 26th August 2011, the complainant Essa Muhammad son
of Gul Muhammad lodged abo ve FIR, with the averments that on the day of occurrence at
about 07.20 p.m. the accused namely Ameer Shah, Ibrahim Shah and Suleman Shah sons of Khan Muhammad were standing nearby the Masjid of Mohallah Badezai Bye -pass Chaman
and when Haji Sarwar along w ith his son Asadullah came out of Masjid, the accused Ibrahim
Shah made firing with T.T. pistol upon Haji Sarwar, while accused Ameer Shah made firing with T.T. pistol upon Asadullah and after committing the crime, they decamped from the place of occurrence. It is further averred in the FIR that Haji Sarwar and his son Asadullah fell down and succumbed to the injuries. The motive behind the occurrence was that on the said date at the time of Asar prayer, the deceased Haji Sarwar restrained the accused party
from throwing garbage in the street.
3. After registration of FIR, the applicant (accused) remained absconder and has recently
been arrested, who was subjected to investigation and on completion thereof, he was remanded to judicial custody and challan of the case was submitted in the trial Court i.e.
District and Sessions Judge, Killa Abdullah at Chaman. In the mean time, the applicant (accused) filed an application for grant of bail, which was rejected vide order dated 22nd February 2020. Whereafter, he f iled the instant application before this Court.
6 (sic) Heard the learned counsel for parties and perused the available record minutely.
Perusal of record reveals that though the applicant (accused) was nominated in the FIR, but the fact remains that no ro le of firing upon the deceased was attributed to him. According to
own case of the prosecution the absconding accused Ibrahim Shah made firing upon deceased Haji Sarwar, while the absconding accused Ameer Shah made firing at deceased Asadullah. The FIR is also silent to the effect that either at the relevant time the applicant (accused) was present at the site in armed condition or he was empty handed. It is well settled principle of law that mere presence of an accused at the time of commission of crime is not enough to
hold him responsible for commission of crime unless the prosecution succeeds in establishing that the applicant (accused) had also shared common intention or common object with his co- accomplices or helped or facilitated them in the crime. B eing empty
handed, the applicant (accused) could lend no help to his co- accused, rather he might have
put himself in danger of being harmed by the other side, had there been any retaliation or
counter -attack by them. Furthermore, it has been remained the c onsistent view of the
superior Courts that whenever no overt act is ascribed to accused, lenient view is required to be taken towards the accused for granting him the concession of bail. Reliance in this regard is placed on the cases of Muhammad Khan alias Muhammad Bux v. The State, 2015 PCr.LJ
69, Muhammad Tanveer v. the State, 2014 PCr.LJ 1096, wherein the accused was granted
bail, whose mere presence were also shown at the time of occurrence without their
participation in the crime.
7. It has also been observed that the witnesses recorded their statements under Section
161, Cr.P.C. before the I.O. after lapse more than nine years, wherein it has been alleged that the applicant (accused) was also equipped with arm and he halted the run of deceased persons , but question arises that as to why such role of this applicant (accused) was not
inserted in the First Information Report. Such role assigned to the present applicant subsequently after lapse of nine case, is enough for falling the case of applicant for further inquiry. 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, irrespe ctive of the fact that the
alleged offences are heinous in nature.
8. Another ground agitated by the learned counsel for complainant and the learned State
Counsel is that the applicant (accused) remained absconder for the period of more than nine years, w hich is suggestive of the fact that the applicant (accused) was involved in the crime
and in order to save his skin from legal consequences, he remained fugitive from law. Be that as it may, according to settled norms of justice bail could be granted, if t he accused had good
prima -facie case for bail on merits and mere his absconsion will not come in the way while
grating him bail. Although in the case in hand the applicant (accused) had remained a fugitive from the law and had been declared as proclaimed o ffender, but in a case calling for
further inquiry into his guilt, he is entitled for grant of bail. Reliance in this regard is placed on the case of Mitho Pitafi v. The State, 2009 SCMR 299, wherein similar following view has been taken:
"It is well- settled principle of law that bail can be granted if an accused has good case
for bail on merit and mere absconsion would not come in way while granting the bail. We are, prima facie, of the view that the learned High Court has not appreciated the facts and ci rcumstances of the case in its true perspective while declining bail to the
petitioner."
The cases referred and relied upon by the learned counsel for complainant are
distinguishable from the facts and circumstances of this case.
9. The tentative assessme nt of available record prim facie reflects that what role has
been played in the commission of crime is a fact, which will be ascertained after recording evidence from both the sides and the status of statements under Section 161, Cr.P.C. recorded by the w itnesses after considerable long delay, will also be determined at the time
of delivering of final judgement, till than the case of present applicant falls within the ambit of further inquiry and the learned counsel for the applicant (accused) has succeeded in
making out a case for grant of bail in favour of the applicant (accused), therefore, I am
inclined to allow the instant application and grant bail to the applicant (accused) Suleman Shah son of Khan Muhammad subject to furnishing bail bonds in the sum of Rs.500,000/ -
(Rupees Five Hundred Thousand) with two equivalent sureties of Rs.250,000/ - (Rupees Two
Hundred and Fifty Thousand), with P.R. bonds of the like amount to the satisfaction of trial
Court or Additional Registrar of this Court.
The observat ions made hereinabove are tentative in nature and the same shall not
influence the merits of the case.
SA/157/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,
let us know.