2014 P Cr (PLP)

MAHMOOD AHMAD BHATTI, J.

Ghulam Abbas, the petitioner seeks the grant of post-arrest bail in case F.I.R. No.241/2013 dated 29-5-2013 registered under sections 302 and 34, P.P.C. read with section 109 of P.P.C. at Police Station Saddar Mianchannu, District, Khanewal.

2. The above-mentioned complaint was lodged at the instance of Allah Yar, who stated that two accused, namely Muhammad Riaz alias Alam and Ghulam Abbas (the petitioner) carried out the murder of his brother, Muhammad Yar.

3. It is contended by the learned counsel for the petitioner that the petitioner was not armed with any weapon; that no overt role is attributed to him; that no recovery was effected from him; that he has been involved falsely on account of his close relationship with co-accused, Muhammad Riaz; that investigation is complete, and the petitioner is no more required for the aforesaid purpose. He lastly submits that there is no progress in the conducting of the trial. He adds that the petitioner has been behind the bars since 13-7-2013, and his role in the commission of the crime calls for further inquiry.

4. Mian Abdul Qayyum, learned Additional Prosecutor-General, assisted by Choudhary Khalid Mehmood Arain Advocate/learned counsel for the complainant opposes the granting of post-arrest bail to the petitioner on the grounds that the name of the petitioner finds mention in the F.I.R.; that the petitioner is vicariously liable for the murder of Muhammad Yar that so many other cases stand registered against the petitioner and that Muhammad Riaz and the petitioner being uncle and nephew inter se have committed a crime jointly. They imply that the petitioner is as much liable for the murder of Muhammad Yar as is the principal accused, Muhammad Riaz.

5. I have heard the arguments of learned counsel for the parties and gone through the record.

6. A perusal of the F.I.R. shows that the petitioner was unarmed at the time of commission of the alleged crime. No overt act is attributed to him except that he pointed to the co-accused, Muhammad Riaz that the deceased; was heading towards them. He is alleged to have shouted lalkara, besides provoking the co-accused into taking the life of the deceased. Prima facie, he did not actively participate in the commission of the crime. It has not been denied by the prosecution that he was unarmed. Therefore, the question of making recovery of weapon of offence from him did not arise at all. Apparently, the complainant cast the net wide, implicating the petitioner in the case on account of his close relationship with Muhammad Riaz, co-accused, who is alleged to have made straight firing at the deceased. At this stage, it is too early to hold the petitioner vicariously liable for the murder of Muhammad Yar. This question would be gone into by the learned trial Court, after recording the evidence for the prosecution and the defence. As regards the objection of the complainant's counsel that bail cannot be granted to an accused after commencement of the trial, suffice it to refer to the judgments/orders of the Hon'ble Supreme Court in the cases of 'Mst. Maria Khan v. The State and another' (2013 SCMR 49), 'Syed Khalid Hussain Shah v. The State and another' (2014 SCMR 12) and 'Nisar Ahmad v. The State and others' (2014 SCMR 27) where such an objection was overruled. Even, otherwise, the same result follows from a bare perusal of tile provisions of section 497, Cr.P.C.

7. For what has been stated above the petitioner has been able to make out a case for further inquiry into his guilt within the meaning of section 497, Cr.P.C. entitling him to be admitted to past-arrest bail subject to his furnishing surety/bail bonds in the sum of Rs.5,00,000 (Rupees Five Hundred Thousand only) with one surety in the like amount to the satisfaction of the learned trial Court.

8. It is made clear that the above is the tentative assessment of the material produced before the Court for the purpose of deciding the bail application. Any observation made herein would not have any bearing on the trial of the case, which shall be decided on its own merits. MWA/G-15/L Bail granted.