Muhammad Rafique V. The State,

2023 M L D 1528 [Balochistan] Before Rozi Khan Barrech, J MUHAMMAD RAFIQUE ---Applicant Versus The STATE--- Respondent Criminal Transit Bail Application No. 233 of 2023, decided on 12th May, 2023. Criminal Procedure Code (V of 1898) --- ----S. 497---Penal Code ( XLV of 1860), Ss. 302 & 324--- Qatl-i-amd, attempt to qatl -i-amd-- -Bail, grant of ---Mere presence of accused at the place of occurrence--- Record revealed that though the petitioner/ accused was nominated in the FIR, however, role of firing upon the deceased was not attributed to him but to another accused ---First Information Report was also silent about the fact whether at the relevant time the petitioner/accused was present at the spot in armed condition or he was empty- handed ---Mere presence of an accused at the time of commission of a crime was not enough to hold him responsible for commission of a crime unless the prosecution had succeeded in establishing that the petitioner/accused had also shared common intention or common object with the co- accomplice(co -accused) or had helped/facilitated him (co -accused) ---Petitioner/accused, being empty -handed , 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 ---Whenever no overt act was ascribed to the accused, a lenient view was required to be taken towards the accused for granting him the concession of bail ---Co -accused did not disclose that the accused was with him at the time of occurrence---Even the crime weapon had been recovered on the pointation of co -accused ---Thus, no evidence, admittedly, was on record that the petitioner/accused had made firing upon the deceased ---Trial Court would answer the question whether mere presence of the petitioner/accused at the place of occurrence could result into his conviction or not ---Bail should not be ordinarily granted to an accused in a murder case where the trial had commenced, when there was a possibility of prejudicing the merit of the case, or there was a likelihood of abscondence of the accused---Holding of trial, at whatever stage, does not create bar in granting bail if the accused was otherwise found entitled--- Case of the accused required further inquiry---Bail was allowed, in circumstances. Aqil Khan Badini for Applicant. Wajahat Khan Ghaznavi, State Counsel for Prosecutor General for the State. Date of hearing: 11th May, 2023. ORDER ROZI KHAN BARRECH, J. ---Through instant application, the applicant/accused Muhammad Rafiq, son of Muhammad Hassani, seeks post -arrest bail under section 497, Cr.P.C in case FIR No. 124 of 2022 dated 01.11.2022 registered with PS City Noshki under sections 302 and 34, P.P.C. Earlier, the applicant/accused moved an application in the court of learned Sessions Judge Noshki, which was rejected vide order dated 18.04.2023, hence this application.

2. Briefly stated facts of the case are that a case was registered vide FIR No. 124 of 2020 on the complaint of one Akhtar Muhammad, son of Elahi Bakhsh, alleging therein that on 01.11.2022, he and his brothers Naveed Ahmed and Musavir, were present at their shop situated at Noshki Bus Adda. At about 4:00 p.m. the applicant/accused, Muhammad Rafiq, and co- accused Kaleemullahh, came to their shop on a motorcycle. The co -accused, Kaleemullah, entered their shop, and put out a pistol, and made firing upon his brother Naveed Ahmed, who received injuries and later on succumbed to the injuries. Afterwards, both the accused persons fled away from the place of occurrence. Hence, the crime report.

3. I have heard the arguments advanced by learned counsel for the parties and also perused the available record with their able assistance.

4. Though at the bail stage, the deep appreciation of material available on record is unwarranted, and only the court has to form its opinion tentatively on the basis of the available record, but it is also true that the bail application cannot be decided in a vacuum rather a bird's eye view is required to be taken.

5. After a tentative assessment of the record, it revealed that though the applicant/accused was nominated in the FIR but the fact remains that no role of firing upon the deceased was attributed to him. According to the own case of the prosecution, the co-accused accused, Kaleemullah made firing upon the deceased, Naveed Ahmed. 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 the mere presence of an accused at the time of commission of the crime is not enough to hold him responsible for commission of a crime unless the prosecution succeeds in establishing that the applicant/accused had also shared common intention or common object with his co-accomplice or helped or facilitated him in the crime. Being 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 remained the consistent view of the superior courts that whenever no overt act is ascribed to the accused, a lenient view is required to be taken towards the accused for granting him the concession of bail.

6. It is worthwhile to mention here that the co -accused, Kaleemullah, allegedly made disclosure before the police during the investigation and on his pointation crime weapon was also recovered. The co -accused disclosed before the police that Muhammad Siddiq, son of Shah Dost, was with him at the time of occurrence. The co- accused did not disclose the name of the applicant/accused with the effect that at the time of occurrence, the applicant/accused was with him.

7. There is no doubt or cavil to the proposition that the bail should not be ordinarily granted to an accused in a murder case where the trial has commenced when there is a possibility of prejudicing the merits of the case, or there is a likelihood of abscondance of the accused. In the peculiar circumstances of the instant case it is an admitted fact that there is no evidence on record that the applicant/accused made firing upon the deceased, and the question that the mere presence of the accused at the place of occurrence can result in conviction of the applicant/accused to the extent of awarding death sentence or not?, is still to be seen by the trial court. Thus, I am of the considered view that holding the trial does not create a bar in the way of the superior court who have got ample jurisdiction to grant bail to the accused if the accused is found entitled irrespective that the trial has commenced and the evidence has begun, or it has been recorded or concluded.

8. I would also like to add here that it is a matter of great importance for the court that a person who is entitled to the grant of bail should not be kept in jail, as even a single day of detention of an innocent accused could not be compensated, after his acquittal at the conclusion of the case.

9. Since the case of the applicant, as discussed above, falls within the ambit of "further inquiry", therefore, the application is accepted, and consequent thereto, the applicant/accused Muhammad Rafiq, son of Muhammad Hassani, is granted bail in the case FIR No. 124 of 2022 of PS City Noshki lodged under sections 302 and 34, P.P.C. subject to furnishing surety to the tune of Rs. 500,000 with PR bond of like amount to the satisfaction of Additional Registrar of this court/ trial court. The above observations are only tentative for the purpose of the decision on this application which should not be used for influencing the adjudication of the case by any party, and these should be kept limited for the sole purpose of this application. The trial court has obviously to decide the case upon its own merits after applying judicial mind and independent conscience to the facts and circumstances of the case. MQ/102/Bal. Bail granted.