1. ORDER MUHAMMAD TASNIM, J.---The applicant Syed Hakim Ali Shah seeks bail after arrest in Crime No. 65 of 2010 registered with Police Station, Baberloi, for offence under sections 302, 114, 34, P.P.C.
2. The bail application moved before the trial Court on behalf of the applicant was dismissed by learned 3rd Additional Sessions Judge, Khairpur, vide order dated 30-8-2010.
3. The brief facts of the prosecution case, as set out in the F.I.R., are that 24-6-2010 complainant Syed Ghulam Ali Shah lodged F.I.R., alleging inter alia therein that on the same day, accused Syed Latif Shah armed with pistol made straight fires upon Mst. Musrat which hit her at her chest and she died in the way to hospital, whereas accused Syed Pervez threatened the complainant party on the show of rifle, carried by him; while present applicant instigated co-accused to commit murder of the complainant party.
4. Learned counsel for the applicant has argued that as many as three accused, namely, Syed Latif Shah, Syed Pervez Shah and Syed Hakim Ali Shah have been cited in the F.I.R. He says that co- accused Latif Shah and Pervez Shah are sons of Syed Hakim Ali Shah, the present applicant. He further says that prosecution has malafidely implicated the father in the F.I.R. Just to harass the entire family. He further says that as per F.I.R., present applicant was empty handed and no active role causing any injury to the deceased has been attributed to the applicant. He says that from the plain reading of F.I.R. It is clear that the allegation against the present applicant about Hakal and instigation is after the commission of offence allegedly committed by Syed Latif Shah, hence instigation made by the applicant is not relatable to the commission of offence.
5. In support of his aforesaid contentions, learned counsel has relied upon cases of Yaroo v. The State (2004 SCM R 864), Rustam alias Hoto v. The State (2004 PCr.LJ 1753), Jahndoo and another v. The State (2006 YLR 3206), Rajib Ali v. The State (2005 SLJ 1529) and Abdul Ghaffar v. The State 2009 PCr.LJ 187.
6. Conversely, learned A.P.-G. Has opposed the grant of bail to the applicant on the ground that case falls under prohibitory clause as an innocent person has died and ample material is available an record which connects the present applicant with the commission of offence. He further says that from plain reading of F.I.R. It is apparent that the applicant has made Hakal prior to the commission of offence and he was assigned active role in the commission of offence, hence he is not entitled to bail.
7. I have heard learned counsel for the parties and have gone through the record and case-law cited at the bar.
8. From the perusal of F.I.R., it appears that the applicant was empty handed and no active role was assigned to him. The allegation of Hakal was allegedly made by the applicant after the commission of offence as per plain reading of the F.I.R. The allegation of common intention can be properly dealt with by the trial Court when evidence of the prosecution is recorded.
9. In case of Rajib Ali v. The State (supra), Learned Single Judge of this Court while dealing with the point of Lalkara has held as under: "No overt act or any other part has been assigned to the applicant except a Lalkara nor he has facilitated the other accused to commit the offence nor he had deterred the P. Ws or threatened them not to interfere in the matter. Applicant Rajib was simply present and empty handed which appears that the required intention involving ingredients of common intention is lacking in the present case. However, this requires deeper appreciation of evidence, which is the function of the Trial Court and that can be done at the time of trial. At this stage a tentative assessment is to be made from the evidence and to form an opinion whether a case for bail has been made out or not.
10. In the case of Abdul Rahim (Supra) on the similar facts and circumstances, the Honourable Supreme Court of Pakistan granted bail to the accused persons."
11. Judgments cited by the learned counsel for the applicant are fully attracted in the circumstances of the case. Since allegation of only Hakal and that is after the commission of offence has been made against the applicant and it is yet to be seen as to whether applicant was any way connected with the commission, of offence or not, for that further enquiry is called for in terms of subsection (2) of section 497, Cr. P. C.
12. Accordingly, I admit the present applicant to bail on his furnishing solvent surety in the sum of Rs.100,000 (One lac rupees) and execution of personal bond in the like amount to the satisfaction of the trial Court.
13. In view of above, bail application is disposed of accordingly.