1999 P Cr (PLP)

Syed Shamim Haider Zaidi for the Complainant. Kamran Bin Latif for the State. Ibrahim petitioner is seeking post-arrest bail in case F. I. R. No. 118 of 1997, dated 11-7-1997 registered under section 302/148/149, P.P.C. at Police Station Kot Mubarak, District D.G. Khan on the statement of one Noor Muhammad father of Ismail deceased for an occurrence which took place on 11-7-1997 at 12-30 midnight in the area of Mauza Patti Tali which is at a distance of 22 Km. from the police station.

2. The allegation against the petitioner is that he held Ismail deceased in a Japha while Muhammad co-accused who was armed with .30 bore pistol fired at the deceased. First two fires missed but the third fire hit the deceased. Besides the petitioner and co-accused Muhammad, Moosa, Ismail, Abdul Kareem and Asghar were also named as accused in the F.I.R. but then have been exonerated in the course of investigation and have not been challaned. This occurrence was witnessed besides complainant by Ghulam Yaseen son of the complainant and Sawan nephew of the complainant.

3. The motive attributed in the F.I.R. is that Muhammad accused suspected his wife to have illicit relations with Ismail deceased. Both Muhammad and Ibrahim petitioner were arrested on 3.1-7-1997 and the crime weapon was recovered from Muhammad accused on the same day.

4. Learned counsel for the State assisted by the learned counsel for the complainant have argued that the challan has been submitted in Court. The copies of documents even distributed to the accused, the next date is fixed for further proceedings on 23-5-1998 and that the accused who had not been challaned by the police have also been summoned by the learned trial Court and are facing trial. It is further submitted that the seat of injury is such that it could only be caused if the movement of the deceased had been made ineffective only. The petitioner is the nephew of Muhammad co-accused.

5. On the other hand, learned counsel for the petitioner has argued that it is a dark night occurrence and though the witnesses state that the occurrence was witnessed in the torch light yet according to the Investigating Officer present with record, the torch was never taken into possession and thus, the factum of identification at the spot and the specific attribution of any overt act become doubtful. Furthermore, it is submitted that the house of the witnesses and the deceased is at a distance of about five acres from the place of occurrence. Muhammad accused is stated to have made three fires at the deceased out of which two missed and only one was an effective shot which hit the deceased. No crime-empty has been recovered from the spot to corroborate the version of the complainant party. It is further stated that Ibrahim petitioner had no common motive to commit this offence with Muhammad accused.

6. Arguments heard. Record perused.

7. The only role attributed to Ibrahim petitioner is that he held the deceased in a Japha and that he is involved because he is nephew of Muhammad accused. Prima facie, there are reasonable grounds to believe that the case of the petitioner is one of further enquiry and that it is yet to be seen whether he facilitated the main accused while committing the offence and that also whether he was positively and correctly identified to be present at the spot in the absence of any means for a correct identification. Be that as it may, since the case of the petitioner falls within the scope of section 497, Cr.P.C. being a case of further enquiry he is allowed bail subject to his furnishing bail bond in the sum of Rs.1,00,000 (Rupees one lac only) with two sureties each in the like amount to the satisfaction of the learned trial Court. N.H.Q./I-73/L Bail allowed.