1998 P Cr (PLP)

A.H. Masood for the State. A case under section 302/34, P.P.C. was registered against the petitioner and his two sons namely Mehna Masih and Eida Masih for the murder of Mehtab Masih on 24-12-1996 at about 4-00 p.m. within the area of Rao Khanwala, Police Station Raja Jang, District Kasur.

2. The report about the occurrence was lodged by Mst. Sheedan Bibi i.e.; widow of the deceased. She contended in the F.I.R. that there was a dispute of about 4 Marlas of land between the deceased Mehtab Masih and his brother Chiragh i.e.; the petitioner. Allegedly, there were altercations-between the two sides on several occasions which ultimately led to the unfortunate present occurrence. She further deposed in the F.I.R. that Mehna Masih and Eida Masih while armed with pistols fired at the deceased at the exhortation of their father i.e.; Chiragh Din, the present petitioner.

3. Learned counsel for the petitioner has submitted that the petitioner was not present at the place of occurrence as he had gone to his daughter's house in Green Town, Lahore for giving her Christmas gift. In that context, some witnesses were examined by the Investigating Officer who also supported the version that the petitioner was not present at the place of occurrence. One of the P.Ws. namely Panju Masih son of Labbu Masih also supported the aforesaid version. On the basis of aforesaid statements, the Investigating Officer namely Riaz Ahmad, A.S.-I. finally concluded on 8-3-1997 that the petitioner was not present at the time of occurrence but he was sent up, to face the trial as the complainant side insisted that he was one of the murderers of the deceased. As such, it is contended that it has become a case of further enquiry. Secondly, it is argued that the petitioner being an old person of about 60 years of age, only a proverbial Lalkara was attributed to him, which is a usual practice in such like cases to involve the head of the family allegedly in order to bring maximum harm to the other side.

4. Learned counsel appearing for the State opposed the bail petition on the ground that there was no proverbial Lalkara but was allegedly a command from the father to his- sons to kill a person with whom, the petitioner 'had a motive over the dispute of 4 Marlas of land. Secondly, it is contended that the deeper appreciation about the participation of the petitioner in the occurrence cannon be undertaken at this stage. It is- enough to point out that the eye-witnesses have implicated the petitioner by deposing that he was present at the place of occurrence and had exhorted his sons to take life of the deceased. It was, therefore, submitted that the petitioner was equally and vicariously liable alongwith his sons and does not deserve to be released on bail at this stage as the offence is punishable either with death or imprisonment for life: As such, it is contended that the bail in such cases is not to be granted as a matter of routine and since there is no extenuating circumstance, hence the petitioner has no case for bail.

5. I have considered the foregoing submissions. It is true that deeper appreciation about the merits of the case cannot be undertaken at this stage lest it may prejudice the trial. It is an admitted fact that the petitioner was empty handed at the time of occurrence and had done nothing except that he raised Lalkara that the deceased be done to death. On this point, there is some difference between eye-witnesses and the ,witnesses examined by the Investigating Officer. Some of them have supported, the plea of alibi that the petitioner was away at the time of occurrence from the place of occurrence as he had gone to the house of his daughter in order to give her Christmas gift. As such the circumstances revealed above would make it a case of further enquiry. The question of vicarious liability shall remain open $o as to be' 'settled at the trial after examining the evidence of the prosecution and also that of the defence, if so produced.

6. In view of the above situation, the petition is accepted and the petitioner is admitted to bail in the sum of Rs.50,000 with a surety in the like amount to the satisfaction of the learned trial Court. Needless to say that if the petitioner misuses the concession of bail, the aggrieved party may have right to apply for the cancellation of the bail.

7. Disposed of with the above observations

8. Copy Dasti N.H.Q./C-711 Bail granted