' SHAHNAWAZ TARIQ, 'hrough the instant criminal bail pplication, the applicant Munwar Shah has rayed for his release on bail.
2. Brief facts for the purpose of istant bail application are that two days rior to the incident, a quarrel occurred in etween complainant Syed Yamin Shah and ccused Panjal Shah and others. On the day incident, viz. 2-6-2011 in the morning me, the complainant Syed Yameen Shah, is brother Syed Yasin Shah and others 'ere sitting in their house. At about 7-00 .m., accused Panjal Shah having gun, yed Khalid Shah alias Karo Shah having Babloo Shah alias Fayaz Shah having gun, Jawaid Shah having country made pistol, Koural Shah alias Qabool Shah having pistol, Bahar Shah having pistol, Asif Shah having gun, Muharram Shah having pistol, Anwar Shah having pistol, Waseem Shah having pistol, Qurban Shah having country made pistol, Munwar Shah, the present applicant/accused having gun and Mushtaque Shah, having gun came at the roof of their house.
Accused Khalid Shah challenged them and fired upon complainant's brother Yasin Shah, which hit him on his chest. Accused Panjal Shah also fired upon Yasin Shah, which hit him below his right eye.
Remaining accused made fires which hit Shahzado Shah and Mumtaz Shah on different parts of their bodies. Thereafter all accused went away by firing shots in the air. The complainant's brother/injured Yasin Shah succumbed to his injuries on the way while shifting to hospital. The injured were shifted to R.H.C. Tharushah Hospital, wherefrom they were referred to Naushehro Feroze hospital due to their serious condition, leaving P.Ws over dead body at hospital, complainant came at Police Station Tharushah, where he lodged the F.I.R.
3. The bail application moved by the applicant before the trial Court of learned Additional Sessions Judge, Naushehro Feroz was dismissed vide order dated 8-8-2011.
4. The earlier Bail Application No.841 of 2011 filed by the applicant before this court was dismissed for non-prosecution vide order dated 6-8-2012.
5. The learned counsel for the applicant has contended that F.I.R was registered on 2-6-2011, at 0930 hours, while the incident took place on 2-6-2011, at 0700 hours, without any explanation of delay. The applicant has been falsely involved in the instant crime. No specific role has been attributed to the applicant/ accused, only appearance of applicant has been shown in F.I.R, whereas the applicant was not present at the place of occurrence. He further submitted that no fatal injury has been attributed to the present applicant, but the learned trial Court while passing impugned order has not appreciated the circumstances of instant case that there are no reasonable grounds to believe that the applicant has committed the alleged offence. He has, therefore, prayed that applicant be released on bail.
6. In support of his case, the learned counsel for the applicant has relied upon the case of Muhammad Sadiq and another v. The State, 1996 SCMR 1654, wherein it has been held that although accused were armed with a pistol and a rifle, yet they did not cause any injury to the complainant party. Allegation of Lalkara against the accused was proverbial. Accused were admitted to bail in circumstances.
7. The learned counsel for the applicant has relied upon the case of Dilmurad v. The State, 2010 SCMR 1178, wherein it has been held that deceased had only received 3/4 bullet injuries, while as per the F.I.R. All accused used their automatic weapons and so also the fact that four empties of 7.62 MM rifle were recovered from the spot and none of a Kalashnikov. This indeed casts doubt in the matter, which must be resolved in favour of accused. Petition had been converted into appeal and allowed and petitioner/accused was granted bail.
8. The learned counsel for the applicant has relied upon the case of Manzoor Hussain and another v. The State, 2011 SCMR 902, wherein it has been held that F.I.R. Itself had not explained the presence of both the accused in a room, where the murder was allegedly committed by the main accused by firing on the chest of the deceased with his revolver. Main accused had already been granted bail in the case, bail was allowed to the accused in the circumstances.
9. The learned counsel for the applicant has relied upon the case of Inayatullah and 3 others v. The State, 2007 PCr.LJ 1340 (Lahore), wherein it has been held that no vital role was attributed to any of accused who had simply accompanied the co-accused at the time of the occurrence. Danda and fire arms had been recovered from the accused and they were no more required by the office for investigation. Accused were admitted to the bail in the circumstances.
10. The learned counsel for the applicant has relied upon the case of Tariq Zia v. The State, 2003 SCMR 958, it has been held that accused had allegedly raised a "lalkara" on which his co-accused attacked the complainant side. F.I.R. Stated that accused was empty handed and had not played any active role in the commission of alleged offence and it is yet to be determined the effect of the aforesaid lalakara after recording of evidence. Petition for leave to appeal was converted into appeal in circumstances and was allowed bail.
11. The learned counsel for the applicant has relied upon the case of Nazakat Ali v. The State and another, 2008 PCr.LJ 810, it has been held that deceased was allegedly killed by co accused by using .12 bore gun and fatal injury was attributed to him. Case of present accused was quite different from that of principal accused. Accused was alleged to have armed himself with stick and had raised lalkara, such stick having not been used in occurrence. Only role attributed to the accused was that of lalkara which was matter of further inquiry within the meaning of subsection
(2) of section 497 Cr.P.C. The accused was admitted to bail in the circumstances.
12. The learned counsel for the applicant has relied upon the case of Faraz Akram v. The State, 1999 SCMR 1360, wherein it has been held that no overt act was allegedly ascribed to the accused except of ineffective firing which also stood disapproved because of no empty was recovered from the spot. Fatal shot was attributed to the co accused and the question of vicarious liability of accused could be determined at the trial, thus, require further inquiry as contemplated by section 497(2), Cr.P.C. Petition for leave . To appeal accordingly was converted into appeal and accused was admitted to appeal.
13. The learned counsel for the applicant has relied upon the case of Muhammad v. The State, 1998 SCMR 454, wherein it has been held that accused had allegedly made ineffective firing and no injury was attributed to him during the occurrence. Case against the accused, therefore, needed further inquiry. Petition for leaving to appeal was converted into appeal and accused admitted to bail accordingly.
14. From anxious perusal of above cited rulings, it has been transpired that the circumstances and facts mentioned therein are quite distinguishable from the specific facts and circumstances of the present case, therefore, the points involved and discussed in above rulings are not helpful for the applicant, specifically when he was available at the spot i.e. On the roof of the house of the deceased duly armed with weapon and allegedly made firing from his gun.
15. Conversely, the learned A.P.G. Supported the impugned order and opposed the grant of bail to the applicant on the ground that the name of accused/applicant is transpired in F.I.R. Who was duly armed with gun at the time of occurrence and there are allegations of firing against the applicant. Therefore, the case of present applicant is also on the same footing as of remaining two co-accused who were also not granted bail by the trial Court. He further contended that at this stage the applicant is not entitled for grant of bail, therefore, bail application is liable to be dismissed.
16. Learned D.P.G. Has relied upon the case of Gulu Khan v. Gul Daraz Khan, 1995 SCMR 1765, it has been held that accused and his companions had allegedly fired shots from their pistols at the deceased as a result whereof he fell down and died. At such stage it was wholly immaterial as to whose shot proved fatal. Deceased according to medical evidence had received three fire arms wounds of entry. Two empties recovered from the spot were found to have been fired from the license pistol of the accused. On tentative assessment of evidence it was not possible to hold that no reasonable grounds existed for believing that the accused had been guilty of the offence which was punishable with death or imprisonment for life. Submissions made on behalf of accused required deeper appreciation of evidence which was neither permissible nor desirable at bail stage. Reasons given by High Court were neither convincing nor sufficient for releasing the accused on bail in a murder case. Petition for leave to appeal was accordingly converted into appeal and bail granted to accused by High Court was cancelled.
17. I have heard the arguments advanced by the learned counsel for the applicant and learned DPG for the State and carefully perused the record and minutely examined case law relied upon by them.
18. In the case of Serajul Haque v. The State, 1968 SCMR 251, it has been held that under section 497 of the Code of Criminal Procedure when any person accused of any non-bailable offence is arrested or appears or is brought before a Court he may be released on bail, but shall not be so released if there appear reasonable grounds for believing that he has been guilty of an offence punishable with death or transportation for life. Since the offences with which the appellant is charged do not fall within the exception clause his prayer for bail shall be refused only for good and sufficient reasons and no whimsical grounds.
19. In the case of Javed Aslam and another v. The State, 1983 PCr.LJ 2597, it has been held that contention that no specific fire injury attributed to accused as such entitled to bail, held, has no force in circumstances of case, accused member of unlawful assembly who in furtherance of common intention fired at complainant party, prima facie cannot be absolved of constructive liability in common intention of offence of murder and attempted to murder. Bail declined in the circumstances of case.
20. In the case of Babu v. The State, 1981 SCMR 849, it has been held that the petitioner had joined the unlawful assembly by arming himself with a gun, it is immaterial whether the fatal shot is attributed 'to him or not. Although the Investigating Officer found him innocent, yet the name of petitioner was not shown in Column No.2, but in Column No.3 as a regular accused. No benefit can, therefore, accrued to the petitioner on the basis of the opinion formed by the I.O. During the investigation, petition for bail was dismissed accordingly.
21. In the case of Muhammad Usman v. Zafarullah Khan and another, 1994 PCr.LJ 1750, it has been held that offence charged against accused fell within the prohibitory clause of S.497(1), Cr.P.C. And bail was not to be granted in routine. Injured witness had suffered the injury on the vital part of his body. Ocular evidence coupled with medical evidence had sufficiently connected the accused with the offence bail had been allowed to the accused on the grounds which either did not exist or were not recognized in law. Bail allowed to accused by Sessions Court was cancelled accordingly.
22. In the case of Muhammad Ishaq v. Chan Zeb and another, 1996 PCr.LJ 845, it has been held that assemblage of accused party with, weapons had sufficiently reflected on their pre-arranged plan and common intention. Specification as to whose fire hit whom and from what distance was the job of the Trial 'Court and the same was immaterial at bail stage. Accused along with his co- accused had actively participated in the commission of the crime and the besides his own role in the occurrence was also vicariously liable for the offence. Bail was refused to accused in circumstances.
23. In the case of Jan Muhammad and 6 others v. The State, MLD 1997(a) 81, it has been held that constructive liability, determination of Courts on the basis of material placed before them such as F.I.R., statements recorded under S.161, Cr.P.C. Etc. Are fully justified, even at bail stage, to go into the question of constructive liability of accused subject to of caution.
24. In the case of Bashir Ahmed v. The State, PLD 1994 Kar. 462, it has been held that if from the material in the hands of prosecution prima facie case against the accused is made out, bail cannot be granted to him under S.497(2), Cr.P.C. Merely because the Court finds that the evidence when led in the case would not be sufficient for his conviction.
25. In the case of Muhammad Nawaz v. The State, 1994 PCr.LJ 2368 it has been held that accused had been directly charged in the F.I.R for the murder. Eye-witnesses named in the F.I.R. Medical evidence and the incriminating recoveries had all supported the prosecution versions. Reasonable grounds existed to believe that accused was guilty of the offence with which he was charged. Bail was declined to accused in circumstances.
26. In the case of Nazar Hussain and another v. The State 1994 PCr.LJ 1528, P-1533 it has been held that circumstances which constitute sufficient grounds to believe in accused's involvement in offence falling within prohibitory clause of S.497(1), would disentitle accused to bail.
27. In the case of Taj Din alias Bholi v. The State, 1996 PCr.LJ 838, it has been held that court must refuse bail where the prosecution satisfied the court about the existence of reasonable grounds to believe that the accused had committed the offence punishable with death or imprisonment for life or imprisonment for ten years. Only tentative assessment of the evidence is to be made to arrive at such conclusion. Reasonable grounds are such grounds which appeal to a reasonable and prudent man.
28. From the above detailed discussion of the merits of the instant case and cited case-law, it has transpired that the wisdom and philosophy behind the concept of extension of concession of bail is to protect the innocent persons and to minimize the worries, mental agonies, glooms and miseries of members of family who are depending upon the confined person and this concession must not be declined mere on the surmises and self-assumptions pointed out by the prosecution. However, each case shall be scrutinized strictly within purview of the involved relevant facts, specific circumstances, nature and manner of commission of offence and legal parameters settled by the superior courts.
29. Reverting to the facts of instant case, it has transpired that the name of applicant is mentioned in F.I.R., with specific allegations that applicant and other accused persons duly armed with lethal weapons came on the roof of the house of the deceased and carried out a murderous assault, wherein three persons sustained bullet injuries and out of them one injured namely Yasin Shah succumbed to his injuries, which was sufficient to indicate that he had shared the common object.
As per challan, 10 empties were also secured from the spot. The motive of incident is also alleged in the F.I.R. It is well established proposition of law that the deeper assessment of evidence and merits while considering the application for the bail is not admissible, which may affect the case of either party, therefore, at this stage it would be immaterial to discuss as to whose shot proved fatal, and it is domain of the trial Court to dig out the factum of such responsibility after recording the evidence of witnesses.
30. For the foregoing reasons and on the basis of tentative assessment of the evidence available on record, I am of the view that reasonable grounds are existed to believe that applicant was guilty of the alleged offence punishable with death or imprisonment for life. Consequently, the applicant has failed to make out a case of further inquiry for extension of concession of bail, therefore, instant bail application is dismissed.