ABDUL HAMEED BALOCH, J. Through this application the applicants seek bail in No.17 of 2021 lodged with PS Wadh, District Khuzdar, under Section's 302, 34 of the Pakistan Penal Code, 1860 ("P.P.C").
Earlier the bail application filed by the applicants before the Additional Sessions Judge, Khuzdar ("trial court"), was dismissed vide order dated 10.09.2022.
2. Brief facts of the case are that on 29.07.2021 the complainant Asadullah lodged the referred FIR, alleging therein on 28.07.2021 the accused/applicants in furtherance of their common intention made firing upon complainant's brother namely Abdullah, due to which who died.
3. Learned counsel for the applicant stated that the FIR has been lodged with delay of 28 hours without any plausible explanation. The possibility of consultation and deliberation cannot be ruled out. The complainant ascribed general role of firing to the accused nominated in the FIR. No specific role has been assigned to the applicants for causing injuries to the deceased. Nothing has been recovered from the applicants.
4. Conversely learned State Counsel strongly opposed the contention of the applicant contended that the accused are nominated in the promptly registered FIR. The accused were present at the time of occurrence, and they made indiscriminating firing with common object.
The nature of offence is heinous. The witnesses have implicated the accused in the commission of the offence.
5. Heard. Perused the record with able assistance of learned counsel for the applicants and learned State counsel. The complainant lodged the referred FIR against the accused persons with the allegation that the accused persons were armed with sophisticated weapon and made indiscriminate firing, due to which complainant's brother Abdullah sustained bullet injuries and succumbed to injuries. Though the applicants are nominated in the crime report with the role of firing, but mere nomination in the FIR does net disentitle the accused from concession of bail. The bail cannot be withheld as punishment. The purpose and object of bail is to transfer the custody of accused from government agency to surety who is bound to produce the accused in each and every date of hearing.
6. The record reveals that the accused had not caused any injury to the deceased rather the witnesses specifically assigned the role of causing injuries to the deceased to an absconding accused. There is no allegation that the applicant made direct firing upon deceased. The role assigned to the accused is only aerial firing. The court can grant bail to an accused at any stage provided that the accused successfully made out a case for further inquiry. The court while deciding bail application is to make tentative assessment. It is not permissible to go into the minute detail of the evidence that may cause prejudice to either of the party. Similarly, the court cannot decide the bail application without going through the case file. The bail application cannot be decided in vacuum. The Hon'ble Apex Court in Mukram Case 2020 SCMR 956 held that "Liberty of a person is a precious right which cannot be taken away without strong connectivity of accusation." Even in a case where the accused caused injuries to prosecution witnesses the bail has been granted. In this regard reference is made on the case of Abu Bakar Siddique alias Muhammad Abu Bakr v. State 2021 SCMR 540, whereby the Hon'ble Supreme Court of Pakistan held as under: "2. After hearing the learned counsel for the petitioner and learned Additional Prosecutor General at length and perusal of available record with their assistance, it has been observed by us that there is no allegation against the petitioner of causing injury on the person of deceased and he is alleged to have caused a firearm injury on the left thigh of injured Abid Ali. Learned Additional Prosecutor General under instructions of the police officer present with record has stated that during the course of investigation, it was concluded by the police that though petitioner was present at the spot but he only made aerial firing. He further confirms under instructions that co- accused of petitioner Shaukat Ali who was attributed firearm injury on the right thigh of injured Abid Ali was allowed bail by the learned trial court. In the circumstances, case against the petitioner calls for further enquiry falling within the ambit of section 497(2), Code of Criminal Procedure.
7. The occurrence took place in the broad-day light. The parties are known to each other. There is no question of mistaken identity of the accused, but the question of common intention is yet to be determined by the trial court after recording evidence. In this regard reliance is placed on the case of Saeed Yousaf v. State 2021 SCMR 1295, whereby it has been held as under: We have heard learned counsel for the petitioner as also learned Law Officer and have perused the record with their assistance.
There is no denial to this fact that there are four persons involved in the case. The role of causing firearm injury to the deceased is ascribed to the co-accused of the petitioner whereas the only role attributed to the petitioner is that he caused injury to the injured PWs. During medical examination of the injured PWs, it has been specifically mentioned in the medico legal report that the injuries sustained by both the injured PWs are suspected. Even otherwise, there is no specification of injury caused to the injured PWs and even the nature of injury has not been described by the Doctor. We have been informed that from the place of occurrence, four empties were recovered but since no weapon of offence has been recovered, this cannot be used against the petitioner. It has been brought in the notice of the Court that co-accused of the petitioner are still at large and there is no likelihood of their arrest in near future. We have taken care of this aspect of the case. Criminal liability cannot be shifted from one person to the other merely on the ground that the co-accused of the petitioner are still at large. Perusal of the record reveals that one of the grounds on which the learned courts below have refused bail to the petitioner is that he remained absconder after the incident. It is now settled that an accused can be granted bail if the case of the petitioner is otherwise made out on merits and mere absconsion would not come in his way. In Rasool Muhammad v. Asal Muhammad (1995 SCMR 1373), this court has held that disappearance of a person named as a murderer after occurrence is but natural whether named rightly or wrongly. This Court in Muhammad Tasaweer v. Hafiz Zulkarnain (PLD 2009 SC 53) and Mitho Pitafai v. State (2009 SCMR 299) has held that mere absconsion is not conclusive proof of guilt of an accused person. It is only a suspicious circumstance against an accused that he was found guilty of the offence. However, suspicions after all are suspicions. The same cannot take the place of proof. The value of absconsion, therefore, depends on the facts of each case and bail can be granted if an accused has good case for bail on merit and mere absconsion would not deprive him bail, if otherwise the case of the petitioner is of "further inquiry" as envisaged under section 497(2), Cr.P.C. and further no useful purpose would be served while keeping him behind the bars till the conclusion of the trial pending adjudication before the Trial Court.
Reference may also be made to the case of Sikandar Hayat v. State 2022 SCMR 198, whereby it has been held as under:
5. We have heard learned counsel for the parties at some length and have perused the record with their assistance.
As per the contents of the crime report, the allegation levelled against the petitioner is that he along with four co-accused while armed with firearms has launched an attack on the complainant party and due to fire shots made by them two persons have been done to death.
However, we have noted that only a general role of firing has been ascribed to the petitioner and no details have been given as to what kind of weapon the petitioner had used and on which parts of the body of the deceased, the alleged fire shots made by him landed. We have also noted that from the place of occurrence, 27 empties were taken into possession, which according to the report of the FSL were found to be fired from one and the same weapon. In this view of the matter, when the role ascribed to the petitioner is of general nature and according to the report of FSL only one weapon was used in the commission of the crime, it is the Trial Court who after recording of evidence would decide about the guilt or otherwise of the petitioner and until then the petitioner cannot be kept behind the bars for an indefinite period. Keeping in view all the facts and circumstances, the case of the petitioner squarely falls within the purview of section 49(2), Cr.P.C. entitling for further inquiry into his guilt.
8. It is settled principle of law that the accused can claim right of benefit of doubt at bail stage. The Hon'ble Apex Court in Iftikhar Cheema's Case (2022 SCMR 624) held that "It is established principle of law that benefit of doubt can even be extended at bail stage."
In view of above, the application is allowed. The applicants namely Ali Bakhsh son of Ghulam Qadir and Gohwar Khan son of Elahi Bakhsh are admitted to bail under Sections 302, 34 P.P.C in case FIR No.17/2021, PS Wadh, District Khuzdar, subject to furnishing surety in the sum of Rs.3,00,000/- each (Rupees three, lacs each) with P.R bond of the like amount to the satisfaction of the trial court or Additional Registrar of this Court.
Needless to observe that the observations made in this order are tentative in nature and shall have no bearings on merits of the case at trial. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.