1988 P Cr (PLP)

Zafar and Khizar, petitioners herein, stand arrested on the charge of murdering Zulfiqar with the help of six others on 28-6-1987 in the vicinity of Thatha Chah Qadir Bakhsh, Police Station Sadar Hafizabad, District Gujranwala. Their bail plea was declined by the lower Court', hence this application.

2. According to prosecution, Hasanat and Zaka co-accused of the petitioner were challaned for murdering Hatim and Mst. Begum. Zulfiqar deceased used to pursue the case against them. Said Hasanat and Zaka tried to patch up with the complainant but Zulfiqar had foiled their attempt. On the fateful day Yasin complainant and Zulfiqar deceased 'were returning from Mauza Dinga to their village. When they reached the canal bank, they were confronted by Hasanat, Zaka, Ataullah, Arif and 'Khizar (petitioner) who were armed with fire-arms and opened fire on them. The shot fired by Hasanat had hit and killed the deceased, Thereafter Zafar (petitioner) accompanied by Ejaz and Mazhar also arrived. It is alleged that Zafar with the help of Mazhar threw the dead body in the canal which was recovered next day. The matter was, however, reported the same day at Police Station Sadar Hafizabad. The petitioners as, well as their co-accused were arrested.' During investigation Zafar and Khizar besides Ejaz and Mazhar have 'been found to be innocent. A.S. I. Ali Ahmad who is present with record states that one Nawaz of Phullo Charagh Shah deposed that Zafar (petitioner) was present with him at the time of occurrence in: his village. This plea of alibi is stated to have been supported by Mehdi Hassan 'M.P.A.

3. Learned counsel appearing on behalf of the State has vehemently opposed the petition saying that evidence of alibi produced on behalf of the petitioners is weak and furthermore they have been charged with section 148, P.P.C. making them vicariously liable for the offence of murder, therefore, they do not deserve the grant of concession of bail.

4. Admittedly, Zafar, petitioner, who has also been placed in column No,2 of the challan by the Investigating Officer reached the spot after the deceased had been fatally wounded with firing by Hasanat co-accused. Again, both the petitioners did not have any direct motive against the deceased the plea of alibi raised by Zafar, petitioner, during the investigation is supported by evidence and it will not be proper at this stage to evaluate that evidence. In view of the fact that the deceased suffered only one gun shot injury which) is specifically attributed to Hasanat co-accused of the petitioners and that both the petitioners have been placed in column No.2 of the challan by the police it is sufficient to put one on inquiry, whether or not they are guilty of an offence punishable with ten years' R.I. or above. Petitioners' case, therefore, is amply covered by subsection (2) of section 497, Cr.P.C. Consequently I would allow this petition. The petitioners are, thus, directed to be released on bail subject to their furnishing bail bonds in the sum of Rupees fifty thousand (Rs.50,000) with one surety in the like amount each to the satisfaction of Assistant Commissioner/ Duty Magistrate, Hafizabad. S.G.D./Z-50/L Bail allowed