2016 PLP 1 (YLRN)

MAZHAR IQBAL SIDHU, J.

Adnan Ahmad was arrested to prison in a case registered against him and others vide FIR No. 63 dated 13.02.2015 under sections 302/148/149/109, P.P.C. at Police Station Sadar, Wazirabad, District Gujranwala on the written complaint of Muneeb Mushtaq.

2. The prosecution case tersely is that on 13.02.2015 at 10:00 p.m. the petitioner while armed with 223-calibre rifle along with his particeps criminis having been stated to be armed with different lethal weapons along with two unknown persons mounted murderous assault and started thrust firing upon the complainant party. The fire shot made by Muhammad Siddique (Kalashnikov) hit on the head of Muhammad Naveed, then Rehman made second fire shot (Kalashnikov) landed on his neck. Thereafter co-accused also made fire at Muhammad Naveed deceased who succumbed to the injuries there and then. The incident was eyed by the complainant and his companions mentioned in the FIR. The apple of discard has been reported a dispute over a piece of agricultural land.

3. Learned counsel for the petitioner has argued that the petitioner is innocent he has been falsely involved owing to his propinquity with the co-accused as Muhammad Siddique, his father and Rahman his brother; no specific injury has been attributed to him; partway investigation his physical participation at the spot has been opined by the investigating officer doubtful rather his involvement in hatching the conspiracy with the co-accused has been noticed but in this context no evidence has been produced against him; the petitioner endured complete physical remand but no weapon of offence was recovered from him whereas in the report prepared under section 173, Cr.P.C. these facts have been mentioned therein; all these facts and circumstances of the case prima facie make out a case of further inquiry as to implication of the petitioner is concerned. Learned counsel lastly submits that in these circumstances, a case for the grant of bail is made out, thus, instant petition may be accepted. Learned counsel in support of his arguments has relied upon the case of Ehsan Ullah v. The State reported as (2012 SCMR 1137) and the case of Muhammad Shakeel v. The State and others reported as (PLD 2014 SC 458).

4. Learned Additional Prosecutor General assisted by the learned counsel for the complainant has raised contra arguments that the petitioner is nominated in the FIR; the motive relates against him; he also made firing at the deceased and the police opinion being irrelevant is not binding upon the Court, then he cued the learned counsel for the complainant to make his statement who has contended that the facts and circumstances of the case prima facie prove joint embarkation of crime, therefore, individual role is not required to be appreciated at this stage when the deceased has as many as six injuries on his body; he has relied upon the case of Federation of Pakistan through Secretary, Ministry of Law and another v. Gul Zamam Khan (PLD 1989 SC 633), thus, has prayed for dismissal of instant petition.

5. Tripartite arguments heard. Record perused.

6. Before the instant incident litigation over the piece of land has not been denied. Assuredly co-accused Muhammad Siddique and Rehman are father and brother of the petitioner respectively who both have been attributed specific injuries on deceased Muhammad Naveed. Two unknown persons have also been shown who allegedly made firing at the deceased along with others. Autopsy report of the deceased reveals six injuries on his body out of which injuries Nos. 1, 3 and 4 are the entries and other are exit except No. 6 which is a firearm lacerated wound. Literally there are three independent wounds of entrance besides injury No. 6 which is a firearm lacerated wound. Injuries Nos.1 and 3 have specifically been attributed to Muhammad Siddique and Rehman, co-accused respectively whereas remaining injuries, those may be said independent wounds which are two in number as injuries Nos. 4 and 6, these have been attributed to five persons, in this way, when the prosecution does not underpin the injuries vis- -vis the accused persons besides the two who have been attributed specific injuries, in this back drop the police opinion may not be thrown out rightly, after all the object of the investigating officer is to collect the evidence. Physical participation of the petitioners in the alleged occurrence so far as joint venture of firing is concerned has been found doubtful vide investigating agency. No crime weapon has been recovered from him. In these circumstances, the Court has been guided by the principles laid down by the Hon'ble Supreme Court of Pakistan in the case of Ehsan Ullah v. The State reported as (2012 SCMR 1137) as under:

S. 497(2)--Penal Code (XLV of 1860), Ss.302/324/427/ 109/148/ 149--Constitution of Pakistan, Art.185(3)

Qatl-i-Amd, attempt to qatl-i-amd, mischief causing damage, abetment and' rioting--Bail, grant of

Version of State and complainant

Distinction-- Further inquiry

Accused was nominated in FIR but no specific injury to any person had been attributed to him and only generalized and collective allegation was levelled against him

Investigating agency had reached at definite conclusion that accused was not even present at the scene of crime at relevant time and had provided behind the scene abetment to his co-accused for commission of alleged offence

Accused had been recommended for trial only in respect of an offence under S.109, P.P.C.

Prosecution itself had two versions vis-e-vis the accused, first was complainant party according to which accused was present at the spot and had resorted to firing and second of investigating agency according to which accused was not present at the spot and he was abetting his co-accused behind the scene--Such considerations render the case against accused one of further inquiry into his guilt

Bail was allowed. [pp. 1139, 11401 A & C."

7. For what has been discussed above, the case of the petitioner falls within the ambit of further inquiry, therefore, instant petition is accepted, the petitioner is granted bail provided his furnishing bail bonds in the sum of Rs.5,00,000 (Rupees five lac only) with one surety in the like amount to the satisfaction of the learned trial Court. HBT/A-152/L Bail granted.