AFTAB AHMED GORAR, J. Through instant bail application, applicant Mukhtiar Ali son of Mumtaz Mangnejo, who has been booked in Crime No.01/2020 Police Station, Phuloo for offences punishable under dections 302, 324, 337-L(2), 337-F(v), 337-H(2), 427, 148, 149, P.P.C., seeks post-arrest bail.
Earlier his bail application has been declined by Additional Sessions Judge, Gambat vide order dated 23.07.2020.
2. Facts of prosecution case in brief are that three years back complainant namely Yaseen entered into love marriage with Mst. Shahida daughter of Agan Mangnejo on which accused Shoukat and others irked upon. On 16.04.2020 complainant along with his brother Yaseen, Rafique, Abdul Hafeez were going on their tractor from Baharo to phuloo link road near village Landhyoon for harvesting the wheat crop, it was at about 1000 hours when they reached near land of Asadullah Khuhro 9 accused persons on three motorcycles came behind and surrounded them to whom they saw and identified to be Shoukat, Mumtaz, Mohammad Juman, Khuda Bux, Wazir Hussain, Hidayatullah, Mukhtiar (present applicant), Zameer alias Fakir and Javed alias Ashoo all armed with K.Kov and Khuda Bux armed with pistol. Accused Shoukat gave hakal to the complainant's brother Yaseen therefore, he will not be spared, saying so accused Shoukat made fire with his K.Kov which hit Yaseen on his left leg, he also made second fire which hit on his right leg at thigh. Accused Mumtaz fired with his K.Kov upon Yaseen which hit him on his umbilical which was through and through.
Accused Mohammad Juman made K.Kov fire upon Yaseen which hit him on his nipple. Accused Wazeer made K.K fire upon Yaseen which hit him upon back side of head. Accused Hidayatullah made K.Kov fire upon Yaseen which hit him on his forehead. Accused Mukhtiar made K.Kov fire upon Yaseen which hit him on his left arm. Accused Javed alias Ashoo made pistol fire upon Yaseen which hit him on his left arm muscle and he made second fire upon Yaseen which hit him on his left leg knee. Accused Zameer alias Fakir made K.Kov fire which hit to Rafique at his right leg and he also caused butt blow upon Rafique at finger of his right hand. The accused also made firing on the tractor and caused damaged to it. Thereafter, complainant party raised cries which attracted persons who were working in the land and on seeing them accused persons fled away by making aerial firing on their motorcycles along with weapons towards Baharo side. The complainant party saw Yaseen who sustained fire arm injuries and blood was oozing and died in their sight. PW Rafique also sustained fire arm injury at his leg. They informed police of P.S Phuloo on mobile phone. Police came and removed the dead body brought injured Police Station, after completing formalities dead body was handed over to the complainant party and after funeral rite complainant lodged FIR at Police Station.
3. Learned Counsel for the applicant contended that applicant has falsely been implicated by the complainant due to marriage of deceased Yaseen with the sister of accused Shoukat; that there is delay of One day and 08 hours in lodging of the FIR which has not been properly explained by the complainant; that how it is possible that complainant specified the fires hit by each accused upon deceased however, he has exaggerated his version in the FIR; that motive against present applicant has not been proved; that only role against present applicant has been shown that he fire at elbow of the deceased which is not vital part of the body of deceased; that medical evidence is in conflict with ocular testimony; that as per postmortem report as many as 11 injuries alleged to have been shown but there is no specific allegation against accused persons that which injury caused by which accused and deeper appreciation of evidence cannot be ruled out at bail stage; that case has been challaned and applicant is no more required for further investigation. By contending so, he prayed for grant of bail. He relied upon the case of Inayat Ali v. The State (2008 PCr.LJ 1395), Zaka Ullah v. The State and another (2020 SCMR 452), Mohammad Faisal v.
The State and another (2020 SCMR 971), Mohammad Umar v. The State and another (PLD 2004 Supreme Court 477) Rasoolo v. The State (2020 PCr.LJ 166) and Tahir Zeb and others v. The State and another (2020 SCMR 1685).
4. Conversely, Mr. Abdul Sattar Mahessar, learned Counsel for complainant vehemently opposed the grant of bail and supported the impugned order passed by learned Additional Sessions Judge, Gambat; that this is a case of a brutal murder of one innocent person and injuries caused to 'PW Rafique; that accused persons also made firing on the tractor and caused damaged to it; that there is also repetition of fire upon deceased which resulted death of deceased; that delay has fully been explained by the complainant in the FIR; that 13 empties have been recovered by the police from the place of wardat; that PWs have fully supported the version of complainant in their 161, Cr.P.C. statements; that there is specific role attributed to each accused; that all the accused surrounded the tractor of deceased and caused injuries from all sides; that co-accused are still absconders and issuing serious threats to the complainant and PWs and due to life threats they have shifted from their village. He lastly prayed for dismissing the bail application. He relied upon the case of Munawar v. The State (1981 SCMR 1092), Khan Afsar v. The State and another. (2020 PCr.LJ Note 195) Irfanullah v. The State (2019 YLR Note 76) and Hub All and another v. The State (2013 PCr.LJ 25 Sindh).
5. Mr. Shafi Mohammad Mahar, learned Deputy Prosecutor General has adopted the arguments advanced by the learned Counsel for complainant with further addition that the accused/applicant has been directly charged in the FIR for causing the death of deceased; that the medical report and the recovery of empties from the spot support the prosecution story and thus the accused/applicant is not entitled to the concession of bail.
6. I have considered the arguments advanced 'by learned Counsel for parties and have gone through the record. Perusal of record reflects that name of present applicant appears in the FIR with specific role as he armed with K.Kov fired at deceased which hit him on left elbow which is supported by medical evidence and he also shared a common intention with the other co- accused by causing the death of deceased and has actively participated in the commission of the offence hence, principle of vicarious liability is attracted to the case of present applicant.
Furthermore, the complainant has alleged motive that his brother has contracted marriage with sister of accused Shoukat, namely, Mst. Shahida on which they irked upon him and issued serious threats to cause his murder which they have done. Deeper appreciation of the evidence was neither permissible nor warranted at bail stage but at the same time the Court was not precluded from tentatively perusing the evidence of the eye-witnesses, the recovery, and the medical reports to forth a tentative opinion as to whether the accused was prima facie connected with the commission of the offence of murder or not. So far as the role attributed to the applicant is concerned, he allegedly fired at Yaseen (deceased) through his Kalashnikov, which landed at his left elbow. According to remarks by the Medical Officer, as recorded in the postmortem examination report, injury No.9 One firearm wound present on Rt. elbow lettral aspect wound of entry through and through size 1 x 1 cm wound of Exit medial side of Lt. Elbow side 2 x 2 cm, was fatal in nature therefore, present accused could not be absolved of common intention and vicarious liability in such circumstances. The enmity was a double edged weapon which could be used either way, therefore, accused could not claim benefit of the same at bail stage. So far as the delay in lodging the FIR is concerned, prima fade, the FIR itself shows that delay is explained that on the very day of the incident complainant took the dead body to Police Station and after postmortem and funeral rite of the deceased he appeared at Police Station and lodged the FIR. No doubt in the cases cited by the learned Advocate for applicant, bail was granted but in each One of them, the facts and circumstances were quite different and thus they were distinguishable. The prosecution witnesses in their 161, Cr.P.C. statements have fully supported the version of FIR. The offence with which the applicant/accused has been charged, entails capital punishment hence, falls within prohibitory clause of section 497(2), Cr.P.C.
In view of above, I am of the considered view that the F applicant/accused has failed to make out a case for grant of bail. Accordingly, the bail application is dismissed.