1999 PLP 1636 (MLD)

Ch. Khalid Mehmood for Petitioner. Zafar Iqbal Chohan for the Complainant. Mian Shahid Rasool for the State. Petitioner Khizar Hayat alongwith Akbar Ali, Muhammad Arshad @ Pappu, Ijaz Ahmed @ Bagga, Ghulam Ghaus and Zawar Ali stand charged under sections 302/324/148/149, 337-A(II), 337-A(III) and 337-F(IV), P.P.C. for forming an unlawful assembly and in prosecution of their common object committing the murder of Amanullah, causing injuries to Khalid Mehmood, Hidayatullah, Muhammad Hussain and Riaz Ahmad vide F.I.R. No.218, dated 27-7-1997 registered at Police Station Kaso-Ki District Hafizabad.

2. Bail has been sought on the ground that petitioner has got no relation with his co-accused, that he reached the place of occurrence after the death of the deceased had occurred, that his name has been placed in column No.2 and that no recovery whatsoever has been effected from him. It is further argued that petitioner cannot be held responsible for the acts of his co-accused. Reliance is placed upon Nek Muhammad v. The State (1991 SCMR 1630) and Muhammad Farooq and another v. The State (1991) PCr.LJ 1319. Conversely the bail application has been opposed by the learned counsel for the complainant assisted by the learned counsel for the State on the ground that occurrence took placed at 11.00 a.m. whereas F.I.R. has been lodged at 12.30 noon, as such there is no delay in lodging the F.I.R., that name of the present petitioner alongwith specific role is mentioned in the F.I.R., the petitioner was armed with a hatchet at the relevant time and has caused injuries to P.Ws. Khalid Mehmood, Hidayatullah. It is further contended that role attributed to the present petitioner is in conformity with the injuries found on the person of injured as M.L.Rs. It is further argued that petitioner is vicariously liable as he accompanied his co-accused and actively participated in the occurrence. He has placed reliance upon Munawar v. The State (1981 SCMR 1092) and Liaqat Ali v. The State (PLD 1994 SC 172). It is further contended that initially the petitioner was found innocent and his name has been placed in column No.2 of the challan, while as a result of subsequent investigation conducted by Haqdad D.S.P. the petitioner has been found responsible for the commission of offence alongwith his co-accused and in spite of order of D.S.P. that he be arrested and recovery be made nothing was recovered from the present petitioner.

4. The contents of F.I.R. clearly show that at the time of alleged occurrence the present petitioner accompanied his co-accused out of whom Arshad @ Pappu and Ijaz Ahmad were armed with double barrel gun and single barrel gun whereas other co-accused of the petitioner were armed with hatchets. The petitioner has been specifically assigned the role of causing injuries on the person of Khalid Mehmood as well as Hidayatullah on the right side of his head as well as his left shoulder respectively. The injuries on the person of said injured find corroboration from the M.L.R. as Khalid Mehmood and Hidayatullah were examined at 2.00 p.m. and 1-40 p.m. respectively on the same day. There is no doubt that petitioner has been found innocent as a result of investigation conducted at initial stage, yet the case diary dated 16-8-1997 as well as dated 17-8-1997 clearly show that complainant party was adamant regarding the guilt of the present petitioner and the Investigating Officer found him innocent as complainant party had refused to take oath regarding his guilt. The witnesses examined by the prosecution and cited in the F.I.R. have fully corroborated the prosecution version that petitioner was at the relevant time duly armed with hatchet which he used for the commission of offence by causing P injuries on the person of P.Ws. His presence at the spot stands, prima facie, corroborated not only from the oral evidence but also from the medical evidence. Finding of the Investigating Officer at this stage can be made a base for granting the relief of bail as the said finding is in conflict with evidence which has already come on record.

5. In view of the facts stated above the case of the petitioner does not fall within the ambit of section 497(2), Cr.P.C. as such the petition is dismissed. N.H.Q./K-67/L Bail refused.