2009 PLP 889 (YLR)

MAZHAR HUSSIAN MINHAS, J.

The petitioner has moved application for post-arrest bail in case F.I.R No.757 dated 28-11-2007 under section 302/34 P.P.C. registered at Police Station Mumtazabad, Multan.

2. The prosecution version against him is on 28-2-2007 at about 5.00 p.m. he along with his co-accused Suhail Ahmad and Abdul Majid attacked Muhammad Azeem brother of the complainant in a jewellery shop situated in Qasimpur Colony and committed his Qatl-e-Amd by firing at him. Motive for the occurrence is previous criminal litigation between the parties.

3. Learned counsel for the petitioner contends that the petitioner is not attributed any overt act in the occurrence except a proverbial lalkara. He remained in police custody on physical remand for 13 days but nothing was recovered from him. During investigation he has been declared innocent by the police, therefore, his case calls for further inquiry. On the other hand, learned D.P.G for the State and learned counsel for the complainant have vehemently opposed the bail application. Learned counsel for the complainant has submitted that although any fire-shot injury to the deceased is not attributed to the petitioner, but he facilitated his co-accused to commit the offence. He took them to the place of occurrence on a motorcycle and. after accomplishment of their task, took them away from there on the same motorcycle. As such he is vicariously liable for offence of Qatl-e-Amd. According to learned counsel, he remained absconder also for about five months after the occurrence.

4. As per complainant's version unfolded in the F.I.R, the petitioner accompanied his co-accused to the place of occurrence on a Honda 125 cc motorcycle and kept standing outside the jewellery shop, while his co-accused Suhail Ahmad and Abdul Majid went inside the shop and caused firearm injuries to Muhammad Azeem with their respective weapons. When the complainant and P.Ws. Manzoor Shafi and Saeed Ahmad raised alarm, he extended them threats of life brandishing his pistol and fled away along with his co-accused on the motorcycle. Thus, in view of complainant's own version, he simply raised a lalkara to the P.Ws outside the shop and did not cause any injury to the deceased. It also transpires from the record that he was formally arrested by the police on 13-3-2008 and remained on physical remanded till 26-3-2008, but nothing was recovered from him. During investigation it has been found that at the relevant time he was not present at the spot and has been declared innocent. As regards the abscondance, he moved his pre-arrest bail application, but the same was dismissed and after dismissal of that application, he remained fugitive from law for about 2 months. However, learned counsel for the petitioner has submitted that the petitioner was apprehended by the police much earlier to his formal arrest on 13-3-2008 and throughout remained in illegal custody of the police. Nevertheless concession of bail cannot be withheld merely on the ground of abscondance if otherwise case for bail is made out from the facts obtaining on record.

5. In view of facts narrated above, question of petitioner's vicarious liability can be determined through evidence at the time of trial. His case clearly falls within the purview of section 497(2) Cr.P.C. requiring further probe. Hence, the application is allowed and the petitioner is ordered to be released on bail in the sum of Rs.100,000 (Rupees one lac only) with one surety in the like amount to the satisfaction of learned Trial Court. H.B.T./M-104/L Bail allowed.