2017 PLP 73 (YLRN)

ABDUL SAMI KHAN, J.

Through this petition under section 497, Cr.P.C. the petitioner has sought post-arrest bail in case FIR No.653/2013 dated 04.09.2013 under sections 302, 324, 337D, 337A(i), 337F(iv), 337F(vi), 148, 149 P.P.C., registered at Police Station Waris Khan, Rawalpindi.

2. The arguments advanced by learned counsel for the parties have been heard and record has been perused with their able assistance. This is bail after arrest and deeper appreciation is not allowed at this stage. It has been noticed by this Court that the petitioner is named in FIR, however, according to the story of FIR, the injury attributed to the petitioner on the head of Gul Bahar Khan deceased is also attributed to Qayyum Khan co-accused. Afterwards, the complainant got recorded his supplementary statement dated 04.09.2013 wherein he specifically attributed the injury on the head of Gul Bahar Khan deceased to Qayyum Khan co-accused. Same is the position of injured PWs who too attributed the above said injury to Qayyum Khan co-accused. They have, however, stated in their statements under section 161, Cr.P.C. that the fire shot made by the petitioner hit the deceased on his body. In this regard it has been noticed that besides injury on the head of the deceased, there is another injury on his left foot, but according to FIR, Ramzan Khan co-accused has also been attributed firearm injury to the deceased. Furthermore injury on left foot of the deceased has not been mentioned by the complainant in FIR as well as in his supplementary statement and even the injured PWs have not given exact locale of injury allegedly caused by the petitioner. It is settled law that vicarious liability of the petitioner in the commission of alleged occurrence shall be determined by the learned trial court after recording evidence. As far as the contention of learned counsel for the complainant that the petitioner remained absconder for about two years is concerned, suffice it to observe here that absconsion of accused, alone, is no ground to refuse bail as people do abscond due to fear of police. Co-accused of the petitioner namely Arif Khan, Murad Khan, Qadeer Khan, Habib Khan and Abdul Rauf Khan have already been enlarged on post-arrest bail by the learned trial court vide orders dated 02.12.2013, 21.12.2013 and 21.01.2014, whereas Muhammad Imtiaz co-accused was allowed post arrest bail by this Court vide order dated 12.11.2013, therefore the petitioner also deserves same treatment under the rule of consistency. Admittedly the petitioner is previous non-convict. He was arrested in connection with the instant case on 16.09.2015 and since then he is behind the bars without any fruitful progress in conclusion of his trial. Investigation of the case is complete and the petitioner is no more required for further investigation, therefore, further incarceration of the petitioner in jail would not serve any useful purpose. Mere commencement of trial is no ground to refuse bail to an accused if otherwise he becomes entitled to this concession.

3. For what has been discussed above, the case of the petitioner becomes one of further inquiry covered by subsection (2) of section 497, Cr.P.C. This petition is, therefore, allowed and the petitioner is granted bail after arrest subject to his furnishing bail bond in the sum of Rs.400,000/- (Rupees four hundred thousand only) with two sureties each in the like amount to the satisfaction of the learned trial court.

4. The observations made above are tentative in nature and are strictly confined to the decision of this bail petition only. HBT/A-68/L Bail allowed.