' GHULAM QADIR LEGHARI, J.---Through this bail application, the applicant/accused Riaz Ali Leghari seeks post arrest bail in crime No, 44/2015 of police station Mirwah Gorchani, under sections 302, 109, 34, P.P.C. Earlier the bail plea of the applicant was turned down vide order dated 21.10.2015, passed by learned Sessions Judge, Mirpurkhas_
2. The allegation against the present applicant/accused is that on 08.08.2015 at 1730 hours, he caught hold deceased Faiz Muhammad while co-accused Mehtab Ali inflicted dagger blows to the deceased, as a result of which, deceased Faiz Muhammad expired. The motive behind the incident is that there was altercation between accused Mehtab Ali and the brother of complainant namely Faiz Muhammad (deceased) over some domestic affairs and the accused had issued threats to Faiz Muhammad that he would be murdered.
3. Syed Madad Ali Shah, learned counsel for the applicant/accused has, inter-alia contended that the applicant/accused is innocent and has been falsely implicated in the present case. He contended that the prosecution case is of two versions; first is that the applicant/accused had caught hold the deceased from back side and co-accused Mehtab Ali gave dagger blows to the deceased and thereafter he was taken to the hospital for treatment; second version is that according to the police contention, statements of independent witnesses namely, Jumoon, Muhammad Yousif and Ghulam Muhammad were recorded, they disclosed that applicant/ accused Riaz Ali was not present at the time of incident and on his instigation, accused Mehtab had committed murder of the deceased, hence, accused Mehtab was liable for offence under section 302, P.P.C. While applicant/accused Riaz Ali was liable to be challaned for the offence under section 109, P.P.C., hence the allegation against the applicant/accused is for the offence under section 109, P.P.C. He further argued that complainant is brother of the deceased, PW Bashir Ali is son of the deceased and other witness Raza Muhammad is the cousin of the deceased and they had not tried to save the deceased, it means that they were not present, if they would have been present, they would have tried to save the deceased. He further argued that the incident had taken place in front of the shop of Barbar but he has not been cited as a witness. He further argued that 161, Cr.P.C. Statements of the PWs were recorded on 10-8-2015 after two days of the incident and such delay has not been explained. He further argued that this is case of two versions, one version of the complainant party and second version of the police party, hence it will be determined at the time of trial and case requires further inquiry. He also argued that this is a case of benefit of doubt and accused is entitled to be granted bail. In support of his contentions, he has placed the reliance on 1994 SCM R 393, 1995 SCM R 310, 2005 YLR 470, PLD 1996 Supreme Court 241, 2006 YLR 256, 2011 SCM R 1725, 2008 YLR 2829, 2011 M LD 210 and PLD 1972 Supreme Court 277.
4. On the other hand, Mr. Shahid Ahmed Shaikh, learned A.P.G. Sindh appearing on behalf of State has contended that so far the contention of the learned defense counsel regarding delay of five hours in lodging of FIR is concerned, it is not fatal to the prosecution case in the circumstances of the present case as the deceased was taken in injured condition to the hospital but he expired during the treatment and thereafter his postmortem was conducted and then dead body was taken to the village, hence such delay of five hours in lodging the FIR is natural in the circumstances of the case. He further contended that FIR shows that the altercation had taken place between Mehtab Ali and deceased Faiz Muhammad over domestic affairs and co-villagers had intervened and had tried to settle the dispute and had restrained accused Mehtab Ali from quarreling with the deceased; on the same date, applicant/accused Riaz Ali and co-accused Mehtab Ali had issued threats that they will murder the deceased, hence, it shows that both accused with premeditation and pre-planned killed the deceased. He further argued that the police has recorded the statements of alleged independent witnesses namely, Jumoon, Muhammad Yousif and Ghulam Muhammad but in fact these are D.Ws and the statement of the D.Ws cannot be considered at the bail stage, these D.Ws are inter-se related to the applicant/accused. He further argued that if even version of D.Ws is believed which also clearly shows that the applicant/accused has played a role in the murder of the deceased. He further contended that the incident occurred on 08.8.2015 and 161, Cr.P.C. Statements were recorded on 10.8.2015 and under the circumstances, it is not the delay as the PWs were busy in the funeral ceremony of the deceased. He further argued that as per statements of DWs case is doubtful, is not considerable as it amounts deeper appreciation, hence, this point cannot be considered at bail stage. He further argued that applicant/accused had played active role of caught holding the deceased facilitating the co-accused who gave three dagger blows to the deceased and in the result, he expired. In support of his contentions, he has relied upon 2011 PCr.LJ 1479, 2011 SCM R 1606, 2010 SCM R 1861, 2006 SCM R 966 and 2012 SCM R 707.
5. Haji Qalandar Bux Laghari, learned counsel for the complainant has adopted the same arguments as advanced by the learned A.P.G. He also contended that DW Juman is father-in-law of the applicant/accused, Muhammad Yousif is nephew of the applicant/accused while Ghulam Muhammad was Hari of the applicant/accused and was seriously ill, was lying on death bed and subsequently, he died. He also pointed out that case has been proceeded, complainant and eye- witnesses have been examined and they have fully implicated the applicant/accused. Learned counsel for the complainant prayed for dismissal of instant bail application.
6. I have heard the submissions of learned counsel for the applicant/accused, learned counsel for complainant, learned A.P.G. Perused the file and case laws relied upon by the parties.
7. I have given due consideration to the submissions of the learned counsel for the applicant as well as A.P.G. And complainant's counsel. FIR shows that altercation had taken place between accused Mehtab Ali and deceased Faiz Muhammad over domestic affairs, co-villagers had intervened and tried to settle the dispute and had restrained the accused Mehtab Ali from quarreling with deceased. On the same day applicant/ accused Riaz All and co-accused Mehtab Ali had issued threats of that they will murder the deceased. On the day of incident applicant/accused had caught hold the deceased whereas co-accused Mehtab Ali had given dagger blows to the deceased on his abdomen due to which he died. Applicant/accused had played an active role of caught holding the deceased and facilitated the co-accused Mehtab Ali who gave dagger blows to deceased and committed his murder. In my opinion prima-facie, the applicant/accused Riaz Ali can be connected to the crime in question, as he had allegedly facilitated the murder of the deceased Faiz Muhammad, hence at this stage can be also held vicariously liable for this act. In this respect reliance is placed on the case of Nadeem alias Athar v.
The State (2011 PCr.LJ 1479 Karachi), in which it is held that "three out of four accused, including the applicant caught hold of deceased Aijaz Ali and the fourth accused with the help of other three accused managed to kill him. Such killing of Aijaz Ali was aided and facilitated by the applicant, therefore, the issue of vicarious liability at the bail granting stage would be decided against the co- accused and that the accused could be tentatively conneeted to the crime since he has prima facie facilitated the murder of the deceased and could be held vicariously liable for the crime". It has been settled by the Honourable Supreme Court that "where the accused takes active part in the crime in question, causes injury to deceased or facilitates the other accused do away with the deceased, the issue of vicarious liability at the bail granting stage has been decided against the co-accused". In this connection reference can be made' on case of Hafrz Muhammad Hashim v.
Muhammad Bux and others (1979 SCM R 197) and Gul Khan v. Gul Daraz Khan (1995 SCM R 1765).
8. The contention of learned counsel for the applicant that the complainant and PWs have stated that applicant/accused had caught hold the deceased and co-accused gave dagger blows to the deceased but I.O. Recorded the statements of independents witnesses/D.Ws, they have stated that the applicant/accused was not present at the time of incident but on his instigation co-accused committed the murder of deceased, case is of two versions and requires for further inquiry. It is held in the case of Muhammad Abbasi v. The State (2011 SCM R 1606) that "there are two versions regarding the incident and the truthfulness of the same is to be decided by the trial Court but in view of the statements of eye-witnesses duly supported by Muhammad Khan, Abdul Ghafoor and Ali Hassan, prima facie it can be held that petitioner's involvement cannot be ruled out". It is further held that "while deciding the bail application of an accused, the Courts have to mainly rely upon the material brought on record by prosecution including FIR, statement of complainant under section 161, Cr.P.C. As well as incriminating/circumstantial evidence etc. For tentative assessment against accused to assess whether accused is involved in the commission of offence or not". From the perusal thereof as discussed above that the applicant/accused is prima facie involved in the commission of murder of deceased Faiz Muhammad hence he is not entitled for concession of bail.
9. As far the cases cited by the learned counsel of the applicant, I have perused these cited authorities, in my humble view the facts and circumstances of these cases are distinguishable with the facts and circumstances of this case.
10. In view of material discussed above, I am of the opinion that applicant/accused can be tentatively connected to the crime in' question, since he has prima-facie facilitated the murder of deceased, hence can be held vicariously liable for the same and he is not entitled for concession of bail, hence bail application is dismissed.
11. It is made clear that the observations made here in above are purely of tentative nature and shall not prejudice the case of either party at trial.