1996 P Cr (PLP)

Ch. Maqsood Ahmad Khan for the State. Nadeem Saqlain for the Complainant. The petitioner and 9 others were proceeded against in a case registered vide F.I.R. No.403/95, dated 17-8-1995 under section 302/324/148/149, P.P.C. Police Station, Sadar Kamoke, District Gujranwala.

2. The prosecution story as given in the F.I.R. lodged by Wajid, brother of Arif Khan deceased is that one Muhammad Arshad was an eve teaser and two days prior to the occurrence he was reprimanded and given few slaps by Arif Khan; deceased. The matter was however, patched up on account of intervention by the respectable, the accused however, while leaving the place held out threats to the deceased. On the fateful day and time, it is alleged that petitioner alongwith 9 others having armed themselves with deadly weapons (the petitioner was allegedly armed with Danda while the others were armed with fire-arms) came to the spot. The petitioner and his co-accused Zulfiqar raised Lalkara that Arif Khan deceased be done to death with a view to avenge the insult. Thereupon, Khalil co-accused fired with 222 rifle which hit on the forehead of Arif Khan deceased and he fell down. This was followed by a rifle shot by Muhammad lqbal which hit Khalid (P.W.) on his chest. The complainant and other P.Ws. sought protection behind the thrasher machine.

3. Learned counsel for the petitioner seeks bail on the grounds that only Lalkara is attributed to petitioner that he was declared innocent in two successive investigations, that he is not connected with the motive part of the prosecution story; that his co-accused Gulzar who has been attributed similar role has been granted pre-arrest bail that the prosecution has not come with clean hands inasmuch as two persons from petitioner's side were injured and their injuries were suppressed; that petitioner is admittedly 70 years of age (as per I.D. Card a photo copy of which has been placed on record) and that the investigation is complete and he is no more required for investigation.

4. Learned counsel for the State, though does not deny that petitioner was declared innocent in two successive investigations yet, his presence has been proved at the spot.

5. Learned counsel for the complainant, on the other hand, while opposing the prayer for bail submitted that petitioner is named in the F.I.R. and he being father of the other co-accused was in a position to influence the other assailants who are attributed fatal shot; that propriety demands that petitioner should move the Special Court for Suppression of Terrorist Activities, Gujranwala who is ceased of the matter, that the role attributed to petitioner is not a proverbial Lalkara, that there is no proof that petitioner's side received injuries during the occurrence and that the finding of the Investigating Officer is not binding on this Court.

6. I have heard learned counsel for the parties and have also gone through the record.

7. It is not denied that trial and proceedings before the Special Court have since been stayed by a Division Bench of this Court in Writ Petition No. 1663 of 1995 and that prior to the submission of challan before the Special Court; learned Additional Sessions Judge, Gujranwala, had dismissed petitioner's bail application. That being so and even otherwise, this petition having been admitted has to be decided on merit. The petitioner is attributed only Lalkara. He is neither connected with the motive part of the prosecution story nor he participated in the earlier occurrence which forms the motive part of the prosecution story. He is admittedly 70 years of age and has been declared innocent in two successive investigations and is not even related to Muhammad Arshad who was allegedly given beating by Arif Khan deceased in these circumstances, the question whether he did participate in the occurrence as also the question whether the co-accused who were attributed fatal shots were under his influence and command to commit the alleged offence would call for further inquiry. I am, therefore, inclined to admit the petitioner to bail in case F.I.R. No.403/95, dated 17-8-1995 Police Station, Sadar Kamoke provided he furnishes bail bonds in the sum of Rs.50,000 with two sureties each in the like amount to the satisfaction of A.C./Duty Magistrate, Gujranwala. N.H.Q./A-30/L Bail allowed.