2010 PLP 1492 (MLD)

CH. IFTIKHAR HUSSAIN, J.

Petitioner Sabir Hussain by way of the instant petition has sought for after-arrest bail in case F.I.R. No.643 registered under section 302/148/149, P.P.C. with Police Station Kunjah, District Gujrat on 6-11-2009.

2. Briefly the prosecution case as per the F.I.R. is that on 6-11-2009 at about 5-00 p.m. Muhammad Arfan alias Fanoo and others, out of whom Sabir Hussain and Muhammad Azam were empty-handed, whereas the other having firearms, in prosecution of the common object of the unlawful assembly formed by them had entered into the haveli of the complainant Ijaz Ahmad and on the lalkara of Sabir Hussain and Muhammad Azam, committed the Qatal-e-Amd of his son Muhammad Usman alias Nomi. Accused Irfan alias Fanoo had fired at him with .44 bore rifle hitting on his right side of the chest. The other 44-bore rifle shot was fired at him by accused Tauseef Azam alias Sona hitting on his right bicept. The other accused had made straight fire shots on them and they saved themselves by hiding behind the walls and Pakka Khurlies. They (accused) thereafter fled away from the scene while firing. The incident is said to have taken place on account of previous rivalry and litigation between the parties.

3. It has mainly been contended on his behalf that he according to the own story of the prosecution as narrated in the F.I.R. was empty-handed at the time of incident; that no role qua the deceased is attributed to him except mere lalkara and that too along with his co-accused Muhammad Azam; that during the investigation he and his two sons Irfan alias Fanoo and Imran Raza alias Kaloo have been found not present at the spot at the relevant time and so, innocent in the matter and this makes his case as one of further inquiry into his guilt; and that he had never remained an absconder and was arrested soon after the alleged incident and now is behind the bars.

4. As against the same, the learned D.P.-G. assisted by the learned counsel for the complainant has opposed the petition on the ground that he (petitioner) is nominated in the F.I.R.; that he has been ascribed the role of commanding lalkara as it was to his two sons, who had fired with their respective weapons, out of whom Irfan alias Fano's rifle shot had hit on the right side of the deceased's chest; and that he had remained an absconder for some time after the incident and so, is not entitled to any indulgence by this Court. In support of such plea reliance has been placed upon the case of Munawar v. The State (1981 SCMR 1092), Karamat Ali v. Haji Muhammad Hussain and 4 others 1993 PCr.LJ 2112; Abid alias Abi v. The State (1995 PCr.LJ 1558 Lahore), The State v. Ghulam Rasool and another (2001 PCr.LJ. 295 Lahore), Muhammad Arshad v. The State (2006 SCMR 966), Majeed Ahmad alias Abdul Hameed v. The State (2008 YLR Lahore 2247), Muhammad Rafique and 4 other v. The State through Advocate-General (2008 PCr.LJ 351 Shariat Court AJ&K) and Abdullah Shah v. The State and 2 others (2009 PCr.LJ 561 Peshawar).

5. I have considered the submissions made on behalf of the parties very carefully and gone through the available record.

6. It is interesting to note that as per the own showing of the complainant in the F.I.R., the petitioner was empty-handed at the spot at the relevant time. The role ascribed to him in the alleged incident is that he along with one Muhammad Azam had raised lalkra that Ijaz and others be taught lesson due to daily quarrel.

7. The learned counsel for the complainant has vehemently contended that this lalkara was of the type of command to his two sons, who were involved in the incident. This is but interesting to note that the attribution of the lalkara was not to him alone but also to his co-accused Muhammad Azam. This, rather, was to them both jointly. So, this is yet to be seen that in fact what was the nature of his lalkara, if at all, it may be taken to be so.

8. This is not a sole aspect in his matter, another is that during the investigation Muhammad Afzal Virk, DPO, Gujrat, Raja Abdul Hafiz, Additional S.P., Gujrat and Rai Babar Saeed, S.S.P. Regional Investigation, Gujranwala have opined that accused Imran, Irfan and Sabir Hussain were not present at the spot at the time of occurrence. Another opinion expressed in the case by the S.P (Investigation), Gujrat is also to the similar effect in the following words.

9. Though the ipse dixit of the police is not binding upon the court, yet it is a relevant circumstance to be taken into consideration, while determining the question of grant or otherwise of bail.

10. The above position shows that there was such an opinion by a board comprising of senior police officers. This definitely leaves room to entertain doubt qua his involvement or participation in the matter. It is well settled proposition in criminal administration of justice that benefit of every doubt, even at bail stage, is to be given to an accused. Due to such position available on the record, the question of his liability or vicarious liability in the matter is to be determined at trial.

11. His case, therefore, is covered under subsection (2) of section 497, Cr.P.C, calling for further inquiry into his guilt.

12. It has been argued by the side of the complainant that he has remained an absconder and so, perhaps has lost normal right to bail. I am afraid that that the alleged incident had taken place on 6-11-2009, while it is every body's case that he was arrested on 18-12-2009. It, thus, was within one month and few days, thereafter. It has been explained by his side that he did not avoid to appear before the police and in fact they had not arrested by him before than that. Anyhow, no further discussion on such aspect of the matter is required as he stood arrested after the alleged incident.

13. The learned counsel for the complainant has cited the above mentioned case law in support of his plea to decline him the relief of bail. I am afraid that it is well settled proposition in criminal administration of justice that that each criminal case is to be adjudged in the background of its own facts and circumstances and the facts of the two criminal cases seldom coinside. I am, therefore, of the view that the cases referred to above by his (complainant) side are not aptly applicable herein for the above distinguishable facts and circumstances of his case than those cases.

14. He is behind the bars. Here, I am conscious of the fact that although, he was arrested about four months ago but his case when has been found to be one of further inquiry into his guilt, he then has become entitled to bail as of right and so, can't be detained unnecessary for a moment even.

15. In these circumstances of the case, I have been persuaded to hold that he has succeeded to make out a case for bail.

16. I, therefore, accept this petition and admit him to bail subject to his furnishing fresh bail bonds in the sum of Rs.1,00,000 (Rupees one lac) with two sureties each in the like amount to the satisfaction of the learned trial Court.

17. It is, however, clarified here that the above observations are tentative in nature and meant only for the disposal of the matter in hand. These shall have no bearing at all on any body's case at trial. H.B.T/S-57/L Bail granted.