AFTAB AHMED GORAR J.---Through this bail application, the applica nts/accused seek post arrest bail in Crime No, 29/2017, Police Station Punhal Khan Chandio, District Shaheed Benazirabad, under sections 302, 337-H(2), 449, 34, P.P.C., after dismissal of his earlier bail application vide impugned order dated 21-12-2017, passed by learned 2nd Additional Sessions Judge, Shaheed Benazirabad.
2. As per prosecution case, the complainant Ghulam Nabi lodged FIR on 09.10.2017 stating therein that about one and half years back, his brother namely Arshad alias Khan Sahib Dhiloo contracted Court marriage with Mst.Meena daughter of Ali Hassan Mangwano, due to which Ghulam Mustafa son of Gulsher Mangwano were annoyed and issuing threats for murder of Arshad alias Khan Sahib. On 09.10.2017 complainant, his brother Allah Wassayo, cousin Ali Jan came at the house of his brother Arshad alias Khan Sahib situated at Village Punhal Khan Chandio and were sleeping in the courtyard. It was about 12.30 a.m. when they awakened on noise and saw each Ghulam Mustafa, Yaseen and applicant Rasool Bux and an unknown person having pistols in their hands had surrounded the Cot of Arshad alias Khan Sahib. Meanwhile, Ghulam Mustafa made straight fire shot from pistol upon Arshad alias Khan Sahib while rest of accused pointed out their pistol toward them directing not to come otherwise, they will kill them. Resultantly , brother of the complainant namely , Arshad alias Khan Sahib expired.
3. Learned counsel for the applicant/accused has argued that the applicants have been falsely implicated in this case by the complainant; that the name of applicant Manik does not appear in the FIR but he has been implicated on the basis of further statement of complainant recorded under section 162, Cr.P.C; that no active role is assigned against the applicants despite the compl ainant shown their presence in FIR as well subsequent statement; that motive shown by the complainant for murder is marriage of deceased with Mst.Meena but nowhere the complainant has alleged the annoyance of such marriage upon the applicants, as such, section 311, P.P.C. does not attract against the applicants; that the role making firing upon deceased has been attributed against co- accused Ghulam Mustafa, who has been let off by the police, as such, the case against the applicants is fit for further inquiry; that the instant case has become on two stances as the complaina nt on one hand involves the co- accused whereas on the other hand, the police after investigation of the case, has let off the co-accused; that the applicants are behind the bars and no more required for further investigation and no fruitful purpose would be served if they are kept in Jail for an indefinite period while there are reasons to believe that the applicants have succeeded to make out their case of further inquiry . In support of his contentions, he relied upon cases reported in 2004 SCMR 864 , 2007 PCr .LJ 1848, 2014 SCMR 1347 and 2016 MLD 883 .
4. On the other hand, the counsel for the complainant has contended that murder of deceased was committed with preplanned manner and the applicants shared common intention with principal accused and facilitated the murder; that if several persons would unite with common purpose to do any criminal offence, all those who would assist in the completion of their object would be equally guilty and principle of vicarious liability would be looked into even at bail stage; that at the bail stage only tentative assessment of evidence is required to be conducted and, prima facie, case exists against the applicants, therefore, they are not deserving for concession of bail and prays for dismissal of their bail application. In support of his contentions he has relied upon the cases reported in 2005 PCr.LJ 1963 and 2011 MLD 1 171.
5. Learned A.P.G. for the State supported the contentions advanced by the counsel for the complainant. However , she admits that there is no active role of the applicants/accused.
6. I have considered the submissions advanced by the counsel for parties and have gone through the material available on the record as well as cited case-laws.
7. Record reflects that applicant/accused Rasool Bux is nominated in the FIR whereas, the name of applicant Manik does not appear in FIR, who has been implicated on the basis of subseque nt statement of the complainant recorded under section 162, Cr.P.C., however, no active role against the applicants is alleged in the FIR and mere presence of the applicants is alleged. Prima facie, sharing vicarious liability with the main accused by the applicants can be determined during the trial. FIR is delayed for 21 hours without plausible explanation. Incident took place on 09.10.2017 whereas statement of complainant under section 162, Cr.P.C. was recorded on 15.10.2017; on 10.10.2017 the witnesses implicated the unknown accused with specific role of firing and in statement under section 162, Cr.P.C., the complainant disclosed the name of applicant Manik without any active role, hence, the FIR. and statement of witnesses have contracted each other . Mere involvement of an accused in the offence punishable with capital punis hment falling within the ambit of prohibitory clause under section 497(1), Cr.P.C, does not exclude the accused from benefit of bail until and unless when there appear sufficient grounds to establish his connection with the commiss ion of the offence. It is worthwhile to mention that in the instant case, the investigation agency did not find any material against the co-accused Ghulam Mustafa against whom an active role of firing is assigned was released and his name was kept in column-II in the charge-sheet. The motive for murder . as per complainant, is contracting Court marriage by deceased with Mst. Meena, but the complainant has not alleged anywhere the anger of the applicants, as such, prima facie section 311, P.P.C. does not attract against the applicants. Furthermore, no fruitful purpose would be served to keep the applicants in Jail for an un-certain period as bail cannot be withheld as a punishment and no compensation can be presented to an innocent man for his unjustified incarceration. At this stage, nothing can be said with certainty as to what idea hit the mind of complainants to implicate one of the applicants in his subsequent statement recorded under section 162, Cr.P.C. and such improving version as to witnessing the incident in supplementary statement after registration of FIR appears to be a well thought and deliber ated move on the part of the complainan t to fill-in the gaps of the case, which had created the situation worse for the prosecution case.
8. Under the circumstances, I am of the view that the applicants have been able to make out the case for further inquiry as envisaged under section 497(2), Cr.P.C. Accordingly , applicants are admitted to bail subject to their furnishing solvent surety in the sum of Rs,3,00,000.00 [Rupees three hundred thousand only] each and PR bond in the like amount to the satisfaction of trial court.
Criminal Bail Application stands disposed of.