2014 PLP 933 (MLD)

ABDUS SATTAR ASGHAR, J.

As per certificate this is petitioner's first post-arrest bail before this Court in this case.

2. Muhammad Arshad petitioner/accused in case F.I.R. No.147/ 2013 dated 14-8-2013 under sections 302, 324, 109, 34, P.P.C. Police Station Saddar Jauharabad District Khushab seeks post-arrest bail through this petition.

3. As per F.I.R. lodged on 14-8-2013 on the statement of Kalim Ullah complainant the allegation against the petitioner is that he along with co-accused Babar while riding a motorcycle chased Sami Ullah (deceased) and Gul Anar P.W. who were also coming from Jauharabad side while riding another motorcycle. As per prosecution case it is alleged that co-accused Muhammad Babar fired three shots with pistol 30 bore which hit Sami Ullah in front of his chest and in the right flank whereas third fire was missed; that Sami Ullah in injured condition was attended by the complainant and P.Ws. and conveyed in injured condition to Civil Hospital, Jauharabad where he succumbed to the injuries. Motive is that few days ago Ahmed Sher and Abdul Khaliq had a quarrel with each other wherein Sami Ullah and Muhammad Babar exchanged some hot words.

4. It is argued by learned counsel for the petitioner that he is innocent and falsely implicated in the case by the complainant with malice; that no overt act is attributed to the petitioner; that petitioner is not directly connected with the motive part of prosecution story that an exchange of hot words had taken place in between Muhammad Babar co-accused and Sami Ullah deceased; that there is no allegation against the petitioner that he had fired at the deceased or any prosecution witness during the occurrence; that mere presence of the petitioner at the spot does not connect him with the commission of alleged offence; that there is no evidence against the petitioner with regard to any abetment; that allegedly recovered motorcycle is not owned by the petitioner; that the petitioner is behind the bars since 23-8-2013 without any progress in the trial; that investigation is complete and petitioner is no more required by the police for further investigation therefore petitioner is entitled to the concession of post-arrest bail.

5. It is resisted by learned A.P.-G. for the State assisted by learned counsel for the complainant with the contentions that petitioner is particularly nominated in a promptly lodged F.I.R. with specific role of facilitating the principal accused Muhammad Babar who has been assigned main role of making firing upon the deceased; that the motorcycle used in the occurrence has been recovered from the petitioner; that prosecution has sufficient incriminating material to connect the petitioner with the commission of alleged offence; that there is no malice on the part of the complainant to falsely implicate the petitioner in this case therefore petitioner is not entitled to the concession of post-arrest bail.

6. Arguments heard. Record perused.

7. Perusal of the record reveals that petitioner is nominated in the F.I.R. with specific role of chasing the deceased Sami Ullah on his motorcycle along with principal accused Muhammad Babar. No overt act is attributed to the petitioner. The expression 'overt act' used in law is defined in Black's Law Dictionary 8th edition as "an outward act, however innocent in itself, done in furtherance of conspiracy, treason, or criminal intent". In the Chambers 21st dictionary the term 'overt act' is described as "some thing that is obviously done in execution of criminal intent". As per contents of F.I.R. petitioner had not fired at the deceased or any of the prosecution witnesses during the occurrence. The motorcycle allegedly recovered from the possession of the petitioner is not owned by him and on query of the Court Allah Jiwaya S.I. in attendance states that it is owned by co-accused Muhammad Babar. No lalkara is attributed to the petitioner. Prima faice prosecution has no incriminating material to connect the petitioner with the commission of alleged offence at this stage. The petitioner was not directly connected with the motive part of the prosecution story as according to the prosecution itself an exchange of hot words had taken place between Muhammad Babar co-accused and Sami Ullah deceased. Plea of common intention or vicarious liability is yet to be established during the course of evidence. In the attending circumstances alleged guilt of the petitioner is necessarily a matter of further inquiry. Reliance is made upon Nisar Ahmed v. The State and others (2014 SCMR 27). The investigation is complete and petitioner is no more required by the police for further investigation. The petitioner is behind the bars since 23-8-2013 without any progress in the trial. Petitioner's incarceration is not likely to serve any cause of justice at this stage.

8. For the above reasons this petition is accepted and petitioner is allowed post-arrest bail subject to his furnishing bail bonds in the sum of Rs.1,00,000 (rupees one lac) with one surety in the like amount to the satisfaction of learned trail Court. MWA/M-92/L Bail granted.