1988 P Cr (PLP)

Petitioners Khizar Hayat and Suba through this petition under section 497/498, Cr.P.C. have prayed for grant of bail in a case registered against them under section 302/34, P.P.C. vide F.I.R. No. 53, dated 28-2-1987 with Police Station Bhowana, District Jhang. The allegations against the petitioners are that they alongwith the co-accused Zawar Hussain waylaid the deceased Mst. Manzooran when both of them were armed with .12 bore guns whilst the co-accused with a carbine. It has been further alleged that petitioner No. 2 raised a Lalkara on which a fire was shot by Zawar co-accused which instantaneously killed Mst. Manzooran aforementioned, After the incident all the accused on the alarm raised by the complainant and other women and on approach of residents of the village fled away while firing. The learned counsel for the petitioners has raised the following contentions: (1) That the petitioner No.2 has- been attributed the proverbial Lalkara whilst the presence of petitioner No.1 has only been shown without any overt act by both of them; (2) That the petitioners have been falsely implicated on account of relationship with the main accused Zawar; (3) That there is only one injury inflicted on the deceased and as such the petitioners are in no manner liable for the offence; and (4) That nothing incriminating has been recovered from the petitioners. On the contrary, the learned counsel appearing for the State contended that the petitioners have been named in the F.I.R. They are involved in a serious crime punishable with death and their presence clearly makes out a case against them under section 34, P.P.C. which brings home the guilt equally to them. The learned counsel appearing for the State has also submitted that the challan of the case has since been submitted in the Trial Court. Having given consideration to the controversy I am of the view that the contentions raised on behalf of the petitioners touch the merits of the case and present is no stage to comment thereon lest any prejudice is caused to either party. The contentions raised are otherwise also such which can be appreciated after some evidence has come on record. It has also been correctly pointed out by the learned counsel appearing for the State that the petitioners had been named in the F.I.R. and are charged with an offence which is punishable with death and, therefore, their case is hit by the prohibitory clause of section 497, Cr.P.C. The allegations against the petitioners that they were a party to the waylaying of the deceased and were armed with fire-arms coupled with the fact that they allegedly fled away alongwith the co-accused Zawar Hussain do per se incriminat them for the present and they are thus not entitled to the concession of bail. In view of the foregoing discussion find no merit in this petition which is accordingly dismissed. S. A. / K-79/1, Bail refused