2002 PLP 1085 (MLD)

Imran Aziz Qureshi for Petitioner. Nasir‑ud‑Din Khan Nayyar for the Complainant. Najam‑ul‑Hassan Gill for the State. Through this petition under sections 497/498, Cr.P.C., the petitioner seeks bail after arrest in case F.I.R. No. 114 of 2001 registered on 18‑5‑2001 at Police Station Mannanwala, District Sheikhupura on the statement of Mukhtar Ahmad.

2. The brief facts narrated in the F.I.R. are that on 11‑5‑2001 Farrukh Anwar and Gohar Anwar had beaten the complainant's nephew Sattar Ahmad's son which matter was patched up, on 18‑5‑2001 at about 11‑30 a.m. the complainant alongwith Muhammad Rafique, Sattar Ahmad were sitting in the Baithak, when Sarwar, Amir Khan, Mirza Khan and Muhammad Ashraf came there for apology and they went after sometime but in the meantime they heard firing and the complainant alongwith other went towards the Haveli of Sattar Ahmad where complainant's son Abdul Rashid and sister‑in‑law Balqees Bibi were standing near the Haveli, while Muhammad Ashraf armed with rifle, Farrukh Anwar armed with rifle, Tariq Farooq armed with gun .12 bore Abbas armed with Mauzar, Iqbal armed with Carbine, Ashraf son of Ismail armed with rifle 8 MM Yousaf armed with gun, Asif armed with .30 bore pistol and two unknown persons came and started firing, Muhammad Ashraf fired with his rifle which hit Abdul Rashid on his chest who died at the spot, Farrukh Anwar made a fire with rifle which hit Balqees Bibi on finger of her right foot who fell down and the q accused persons ran away from the spot while making firing. The witnesses came on the spot and saw the occurrence.

3. Learned counsel for the petitioner contends‑that the petitioner has been shown armed with Mauzar and only ineffective firing has been attributed to the petitioner, but no such mauzar has been recovered from the petitioner. It is also contended that no empty or bullet has been recovered from the place of occurrence which makes the case of the petitioner one of further inquiry. It is also contended that although the petitioner has been shown as armed with Mauzar but no injury has been attributed to the petitioner, hence, the petitioner is entitled to the discretionary relief by this Court. It is further contended that the investigation has been completed and the petitioner is no more required for the purposes of investigation and remaining of the petitioner in jail will serve no purposes of investigation, hence, he may be allowed bail.

4. On the contrary, learned counsel for the complainant and the counsel for. the State have opposed the bail application of the petitioner on the ground that the petitioner is nominated as .an accused person in the F.I.R. and the offences are covered by the prohibition contained in subsection (1) of section 497, Cr.P.C. Learned counsel appearing on behalf of the complainant is not in a position to file power of attorney but previously he was appearing on behalf of the complainant, hence for assistance he is allowed to appear on behalf of the complainant. He argues that one empty of Mauzar has been recovered from the spot Which has been found matches with the weapon subsequently recovered from the petitioner, hence, it is proved that the petitioner was present at the spot of occurrence with Mauzar, hence is not entitled to the relief as prayed for in this petition.

5. I have heard the learned counsel for the parties at length. As the petitioner has not been attributed any injury to the deceased or any injured P.W., hence, it is a case of further inquiry to extent of the petitioner that whether he shared the common intention with the co accused or not? It is pertinent to mention here that. the petitioner has been shown as armed with fire‑arm but he did not use the same which is sufficient to hold that the petitioner prima facie did not share the common intention and had no intention prima facie to murder the deceased and it will be seen after recording of the evidence that whether the petitioner had participated in the occurrence and shared the common intention to murder the .deceased alongwith his co‑accused. The case of the petitioner falls within the purview of further inquiry, hence, he is admitted to bail subject to furnishing bail bonds amounting to Rs.1,00,000 (Rupees one lac only) with two sureties each in the like amount to the satisfaction of learned trial Court. H.B.T./A‑454/L Bail granted.