2008 PLP 547 (MLD)

SYED SHABBAR RAZA RIZVI, J.

The learned counsel seeks post arrest bail of the petitioner who stands implicated in F.I.R. No.104 of 2007, dated 11-5-2007 under sections 302, 34, P.P.C. registered at Police Station Sahiwal, District Sargodha.

2. Briefly according to the F.I.R. on 11-5-2007 at about 7-10 p.m. complainant was present at the residence of his brother Zafar Iqbal; that the door bell rang, whereupon, the complainant, Zafar Iqbal and P.W. Akhtar Hussain came into the street. They found Ghulam Raza alias Zakir armed with knife, Khurram Raza (petitioner) empty handed and Muhammad Riaz (empty handed) present in the street. The above mentioned accused persons traded hot words with the complainant's brother Mazhar Iqbal. Therefore, the petitioner Khurram Raza took Mazhar Iqbal from the back into his clasp (Japha) and overpowered him, whereupon co-accused Muhammad Riaz exerted a commanding Lalkara. In response to the said Lalkara co-accused Ghulam Raza inflicted a knife blow into the stomach of Mazhar Iqbal, who fell down on the ground. Said Ghulam Raza alias Zakir inflicted another blow of knife to the said Mazhar Iqbal, on the front of his chest. Mazhar Iqbal died as a result of the above mentioned injuries.

3. The learned counsel for the petitioner submits that the petitioner is shown as unarmed and there is no evidence that he shared common intention with co-accused for the murder of the deceased Mazhar Iqbal. Only attribution against him is holding the deceased into his clasp, therefore, it is not certain -at this stage that the petitioner shares responsibility or is vicariously responsible for causing the murder of the deceased. According to the learned counsel for the petitioner the case of the petitioner is of further inquiry. In support of his arguments the learned counsel has referred to several judgments i.e. 1994 SCMR 393 & 2161, 1981 SCMR 893 and 50, 1981 PCr.LJ 1102, and 1978 SCMR 357.

4. According to the learned Deputy Prosecutor General, Punjab a specific role has been attributed to the petitioner. During the course of investigation his physical presence and active role has been found and sufficient incriminating material has been collected to connect the petitioner with the commission of the offence. The petitioner has committed an offence which falls within the prohibitory clause of section 497, Cr.P.C. therefore, bail should not be allowed.

5. I have heard the learned counsel for the petitioner as well as the learned Deputy Prosecutor General, Punjab.

6. The cases referred by the learned counsel for the petitioner referred to bail granted orders wherein bail was granted to the accused/petitioner on the ground that only allegation of getting hold of the deceased (Japha) was alleged and the learned Courts granted bail. On the same proposition i.e. allegation of getting hold of deceased in Japha, judgments are on both sides. For example in 1979 SCMR 114 the allegation was that the petitioner had got deceased into Japha to facilitate fatal blow. Section 34, P.P.C. was found applicable and bail granted was cancelled by the Honourable Supreme Court. Similarly, in PLD 2002 Karachi 99, the allegation against the accused/petitioner was that he had caught hold of the deceased while the co-accused fired at him and killed him, bail petition was dismissed. In the present case, motive is also attributed to the petitioner that on the day of occurrence at noon time the deceased and petitioner had a quarrel and exchanged abuses amongst themselves and the said event resulted into the instant occurrence. The reading of the F.I.R. clearly shows that by putting a clasp around the deceased's body, the petitioner made the deceased helpless to offer any resistance or attempt to save himself from the two knife blows inflicted by the co-accused Ghulam Raza alias Zakir, hence, petitioner played an active and effective role in killing of the deceased. The learned counsel for the petitioner has not denied the participation or presence of the petitioner at the scene of occurrence. The offence is covered by the prohibitory clause of section 497, Cr.P.C. hence, falls in subsection (1) of section 497, Cr.P.C.

7. Apparently criminal act of murder of Zafar Iqbal was caused by all accused by sharing common intention which can be gathered by conduct of the petitioner and other co-accused. Petitioner made the deceased helpless by taking him into his clasp and whereby facilitated co-accused to inflict two fatal knife blows to the deceased. Certainly in the above circumstances, all accused nominated in the F.I.R. played their roles with criminal intention. It is also obvious that death of the deceased was caused by several acts of the nominated accused in the F.I.R. including the petitioner, by co-operating with each other. For example, the petitioner co-operated by taking the deceased into his Japha, with co-accused Ghulam Raza, who caused two blows of knife to the deceased and caused culpable homicide amounting to murder. Thus, in view of the above sections 34, 35 and 37, P.P.C. are fully attracted with section 302, P.P.C.

8. In view of the above facts and circumstances, prima facie, there are reasonable grounds for believing that the petitioner has committed the offence mentioned in the F.I.R. and this Court does not find it appropriate to accept this bail application at this stage. This bail application is accordingly dismissed. M.H./K-55/L Bail refused.