2013 PLP 701 (YLR)

Through this petition, petitioners Muhammad Imran alias Mani and Tanveer Hussain alias Chammi seek post-arrest bail in Case No.529 of 2011 dated 19-5-2011, offence under sections 302/109/379/427/ 148/149, P.P.C. and section 7 of ATA, 1997, registered at Police Station Factory Area District Sheikhupura.

2. Learned counsel for the petitioners contends that there is collective allegation against ten accused persons of making firing at the deceased and no specific role has been attributed to the petitioners; that no recovery of any weapon of offence was effected from the petitioners; that in three consecutive investigations conducted by three different police officers both the petitioners were found innocent and the police has placed their names in Column No.2 of the report prepared under section 173, Cr.P.C., that the police after thorough investigation has declared that only two nominated accused namely Khizar Hussain and Akmal Shehzad participated in this occurrence; that motive is also not directly attributed to the petitioners and during the course of investigation they have successfully proved their plea of alibi; that in the circumstances, case against the petitioners is one of further inquiry into their guilt and they are entitled for the bail.

3. On the other hand, learned Deputy District Public Prosecutor assisted by learned counsel for the complainant vehemently opposing this bail petition contends that in this broad-daylight occurrence four persons have lost their lives; that the petitioners arc nominated in a promptly lodged F.I.R; that specification of injuries in this occurrence was impossible and the F.I.R. has been registered on the basis of natural statement of the complainant; that it is a case of vicarious liability and every accused is responsible for every act of his other co-accused; that declaration of innocence of the petitioners is a mala fide on the part of the police; that initially both the petitioners were challaned showing their names in Column No.3 of the report under section 173 Cr.P.C. but that report is not available on the record and the petitioners with connivance of the police managed disappearance of the same; that deeper appreciation of evidence especially the plea of alibi taken by the petitioners is not permissible at bail stage; that challan in this case has already been submitted and all the accused including the petitioners have been summoned by the learned trial Court.

4. Heard. Record perused.

5. Be that as it may, admittedly the collective allegation of making firing at the deceased has been levelled against ten accused persons and no specific injury on the persons of the deceased has been attributed to the petitioners. No weapon of offence was recovered from the petitioners. During the investigation the petitioners have taken the plea of alibi that at the time of occurrence they were present in the court of learned Additional Sessions Judge, Ferozewala in connection with the case F.I.R. No.1299 of 2007 and in this regard, statements of two Advocates and Reader of the Court are available on the record and on the basis of the same, petitioners were found innocent in three consecutive investigations and their names were placed in Column No.2 of the report prepared under section 173, Cr.P.C. In view of all above, question of vicarious liability of the petitioners and evidentiary value or the plea of alibi taken by them can validly be determined by the learned trial Court after recording of some evidence. However, case against the petitionrs, in our view, prima facie falls within the purview of subsection (2) of section 497, Cr.P.C. and is one of further inquiry into their guilt. We, therefore, accept this petition and admit the petitioners to post-arrest bail subject to their furnishing bail bonds in the sum of Rs.300,000 (Rupees three hundred thousand only) each with two sureties each in the like amount to the satisfaction of the learned trial Court.

6. It is, however, clarified that observations made hereinabove are just tentative in nature and strictly confined to the disposal of this bail petition. MWA/M-53/L Bail granted.