2012 PLP 899 (MLD)

RAUF AHMAD SHEIKH, J.

Petitioner seeks post-arrest bail in case F.I.R. No.114 of 2011, dated 28-3-2011, under section 302/34, P.P.C., Police Station Ellah Abad, District Kasur.

2. Briefly stated the prosecution version as set forth in the F.I.R. is that on 19-3-2011 at about 2-15 a.m. the complainant and other participants of the "Barat" were travelling on a Toyota Wagon and at Kot Peeran, Bus No.MNP/8386 being driven carelessly, rashly, negligently and at a fast speed overtook the Toyota Wagon and tried to hit its side but they remained safe. After Talvandi, they stopped the Bus and admonished the driver. In the meantime, Najeeb Ullah, Sheraz, Muhammad Akram and Shaukat Ali also came out of the Wagon. The Driver, Conductor and helper were in rage. The driver asked the conductor to bring rod, who immediately after arrival gave a blow on the head of Najeeb Ullah, who fell on the ground. Thereafter, all the three persons grappled with Sheraz. The participants of the "Barat" rescured them by making requests. The accused persons fled away along with the Bus. The occurrence was witnessed by Muhammad Akram, Shaukat Ali and others. Najeeb Ullah was taken to the Hospital Pakohki but the Doctor was not available so was taken to Khudian and from there to General Hospital, Lahore, where he died on 28-3-2011.

3. The learned counsel for the petitioner has contended that the petitioner is not nominated in the F.I.R.; that in the supplementary statement dated 8-4-2011 Ghulam Abbas, Makhan and an unknown person were nominated but the petitioner's name is not Makhan and nor he is known as such; that Fiaz Hussain was Driver and the petitioner was neither driver nor helper rather was travelling in the Bus and has been implicated due to suspicion; that no identification parade was held to prima facie prove that the petitioner is connected with commission of the offence; that the occurrence took place at the spur of the moment between driver, conductor and helper of the Bus on the one side and the passengers of the Toyota pickup, who had intercepted the Bus on the other; that the petitioner being passenger in the bus did not take part in the fight; that the supplementary statement cannot be equated with the F.I.R.; that the petitioner had never absconded and even otherwise absconsion alone is not sufficient to withhold the concession of bail. In support of the contentions raised reliance is placed on 2008 SCMR 1470 and 2009 SCMR 295.

4. The learned D.P.-G. and the learned counsel for the complainant have vehemently opposed the petition. It is stated that the petitioner and his co-accused persons caused death of an innocent young man aged about 20 years; that the rod i.e. weapon of offence was recovered on his pointation and that he remained fugitive from law so is not entitled to the concession of bail.

5. The petitioner was not nominated in the F.I.R. Allegedly the conductor had given a blow with rod. None of the P.Ws. has stated that the petitioner was the conductor, who had given the blow. Even in the supplementary statement dated 8-4-2011, it was not specifically stated that the petitioner had given the fatal blow and caused the injury sustained by the deceased. The occurrence took place at the spur of the moment, when complainant etc had stopped the bus and quarrel started thereafter. The conductor had allegedly given the rod blow but it is not certain, if the petitioner was the said conductor. No identification parade has been held. The question of sharing of common intention would be determined only after recording of the evidence as it was not a pre-meditated occurrence. The recovery of rod is not very significant at this stage as admittedly it was not sent to Chemical Examiner or FSL to determine if it was stained with human blood/hairs. In these circumstances, the case clearly needs further probe and inquiry within the meanings of section 497(2), Cr.P.C. The proclamation under section 87, Cr.P.C. was issued against one Makhan and the petitioner's name is Hassan Shahzad and there is nothing on the record to show that he is known as Makhan also. If the proclamation is issued without mentioning the correct name, parentage and address of the accused, he cannot be deemed to be a proclaimed offender on his failure to appear in pursuance of the same. Even otherwise, the mere absconsion is no ground to withhold the concessions of bail for the reasons elaborated above. In view of the above findings, the Petition is accepted and the petitioner is admitted to bail subject to his furnishing bail bonds in the sum of Rs.2,50,000 with two sureties each in the like amount to the satisfaction of the learned trial court. M.W.A./H-6/L Bail granted.