1998 P Cr (PLP)

Makhdoom Ijaz Hussain Bukhari for Petitioner Ch. Muhammad Anwar Khan for Respondent No. 1 and for Petitioner (in Criminal Miscellaneous No. 1081/B of 1997). ' Mirza Fiazul-Din Ahmad for the State. This order shall dispose of application for cancellation of bail of respondent No.1, Mehmood alias Moonda as well as connected post arrest bail application (Criminal Miscellaneous 1081/B of 1997) of Aziz alias Ghazi, co -accused of respondent No. 1.

2. On the complaint of Muhammad Waryam F.I.R. No.255 of 1996, dated 4-8-1996 was registered at Police station on Saddar, Mian Channun against Daim, Aziz alias Ghazi (petitioner in Criminal Miscellaneous No. 1081/13 of 1997) and Mehmood alias Moonda (respondent No. 1) for committing the murder of one Riaz Ahmad, son of the complainant and injuring Mst. Razia alias Nazo, sister of the deceased. Post-awes bail application' was moved in the Court of learned Sessions Judge, Khanewal on behalf of Mehmood and Aziz. Mehmood alias Moonda was allowed bail, but the bail application to the extent of Aziz alias Ghazi was refused vide order, dated 9-4-1997.

3. The learned counsel for petitioner/respondent No.l contends that the case of petitioner is at par, with that of Mehmood, who has already been admitted to bail by the learned Sessions Judge, Khanewal. The learned counsel further contends that the same role has been attributed to him in the F.I.R. It is next contended that the investigation conducted by the S.P., Aziz and Mehmood, accused, have been found innocent and have been placed in column No.2. No overt act has been attributed to Aziz petitioner and there is absolutely no allegation that he has caused any injury to the deceased or injured P.W., Mst. Razia. So far as the assault upon the deceased is concerned all the three fire shots were caused by Daim, accused, who remained throughout at the spot. He further contends that no recovery has been effected from the petitioner, Aziz, as the alleged Sota according to F.I.R. itself was never used in the occurrence. He further submitted that there is absolutely no circumstance narrated in the F.I.R., which can show common intention and presence of the petitioner alongwith his co-accused Mehmood alias Moonda. He further contends that no cogent reason has been given by the learned Sessions Judge while dismissing the bail application of petitioner, Aziz, when on the same ground Mehmood his co-accused has been admitted to bail. In the F.I.R., there is no distinct whatsoever, in the role attributed to petitioner, Aziz and Mehmood co-accused. On the' basis of principle of consistency the petitioner was also entitled to bail.

2. The learned counsel for the complainant as well as the learned counsel appearing on behalf of the State have vehemently opposed the bail application of Aziz alias Ghazi. The learned counsel for complainant has contended that both the accused are vicariously liable for the murder. He has also referred to Zimini No.9, which according to the learned counsel was sufficient to establish the guilt of the accused as the petitioner Aziz and Mehmood respondent No. 1, were also found guilty.

3. The learned counsel for complainant/petitioner in regard to application for cancellation of bail of Mehmood, accused, has submitted that his bail is liable to be cancelled on the ground of misusing the concession of bail, granted to him by the Sessions Judge, an threatened the eye-witness of occurrence Mst. Razia alias Nazo to restrain her from following the above said murder case. Upon her refusal he and his brother has committed Zina-bil-Jabr with her and a case F.I.R. No.208 of 1997 under section 10/18 of Offence of Zina (Enforcement of Hudood) Ordinance, 1979 was registered against them.

4. Ch. Muhammad Anwar, Advocate who is also counsel for Mehmood, respondent No.1 has controverted the arguments of learned counsel for complainant. He contends that the case for committing of Zina-bil-Jabr, according to the investigation conducted by S.P\ Khanewal, has been found false and even S.P. has recommended for registration of a case against Mst. Razia under Qazf Ordinance. The learned counsel further contends that all these efforts made by the complainant party were just to make a ground for cancellation of bail granted to Mehmood accused and for that they have used every tactic, which they could do. In these circumstances the bail granted to respondent No.l cannot be cancelled as he has already been declared innocent alongwith his co-accused Aziz.

5. I have heard the learned counsel for parties and have also gone through the record. I have also gone through Zimines Nos.9 and

15. According to Zimini No.15, Mehmood alias Moonda and Aziz alias Ghazi, accused, have been declared innocent and the D.S.P. did not agree with the investigation carried out by the S.H.O. In view of difference of opinion recorded by the two Investigating Officer, the case of both the abovesaid accused is that of further inquiry. I observe here that while admitting Mehmood accused to bail, the learned Sessions fudge has refused bail to Aziz, whereas the contents of F.I.R., clearly shows that both of them were placed under similar circumstances and situation and if this was so the Court have to maintain equality. There was no distinction between the role of both accused. In the matter of bail, the Court below did not act on correct principle of law, specifically in cases of this type, and fail to maintain equal treatment between the person placed in similar situation and circumstances. See the cases Abdul Salam v. The State 1980 SCMR 142, Khadim Hussain v. The State 1983 SCMR 124 and Muhammad Naseem alias Naseemo, v. The State 1996 PCr.LJ 1302. Both the abovesaid accused have been placed in Column No.2. The learned counsel for complainant has sought cancellation of bail of Mehmood accused on another ground that he has misused the concession of bail and has allegedly committed Zina-bil-Jabr and a case F.I.R. 208 of 1997 was got registered by Mst. Razia, sister of deceased and injured P.W. of the said murder case. The arguments of the learned counsel for complainant has no substance as the said case was cancelled and the complainant party could not succeed to make a ground which could justify cancellation of bail already granted to respondent No. 1.

6. In- view of above discussion, I see no merit in this application for cancellation of bail of Mehmood, accused respondent No. 1, the same is dismissed accordingly. The connected matter i.e., bail application on behalf of Aziz alias Ghazi (Criminal Miscellaneous No.1081/B of 1997) is accepted, keeping in view the principle of consistency and also being the case of further inquiry, Aziz alias Ghazi, petitioner, is also entitled to be released on bail. He is allowed bail subject to furnishing bail bond in the sum of Rs.1,00,000 with one surety in the like amount to the satisfaction of Trial Court. H.B.T./M-519/L Order accordingly.