2021 PLP 151 (YLRN)

MUHAMMAD TARIQ NADEEM, J.

Petitioners Tasawar Iqbal and Osama Riaz have carved for bail after arrest in case FIR No. 416 dated 15-08-2020 registered under sections 302, 324, 148,149, 337-F(i), 337-A(i), 337-L(2), P.P.C. at Police Station Kuthiala Shaikhan, District Mandi Baha-ud-Din.

2. Succinctly, the facts of the case gleaned out from the contents of FIR are that on the day of occurrence petitioner Tasawar Iqbal and Osama Riaz along with seven other nominated and four/five unknown co-accused attacked upon the complainant party; Osama petitioner fired with his pistol 30 bore, which hit Samraiz Iqbal on his left hip (Kohla), Tasawar Iqbal petitioner gave club blow to Pervaiz Iqbal at left side of his head; co-accused also caused severe injuries to the complainant Umar Hayat, Pervaiz Iqbal, Shamraiz Iqbal and Muhammad Arshad. Subsequently, injured Muhammad Arshad succumbed to the injuries and offence under section 302, P.P.C. was added vide case diary No. 1 dated 15-08-2020.

3. Tripartite arguments heard. Record perused.

4. There is unexplained delay of 07 hours in lodging the FIR and the distance of police station from the place of occurrence is merely 09 Kilometers. Inordinate delay qua time of occurrence and registration of FIR clearly revealed that possibility of deliberation and consultation could not be ruled out. Reliance is placed upon "Khair Muhammad and another v. The State through PG Punjab and another" (2021 SCMR 130).

5. The role ascribed to the petitioner Osama Riaz has not been verified by the local police during the investigation and it has been opined by the investigating officer vide case Diary No. 23 dated 12.09.2020 that he has been found only present at the place of occurrence empty handed. In this way, the case against the petitioner Osama Riaz has become of two versions one written in the FIR by the complainant and other in the shape of police opinion. Even otherwise, the petitioner Osama Riaz has not been attributed any injury to deceased Muhammad Arshad, according to the prosecution story he caused pistol shot at the left hip joint of the injured Shamraiz Iqbal, which went through and through. This injury has been declared by the doctor as Ghayr-Jaifa Damihah, which entails the provision of section 337-F(i), P.P.C., which is bailable in nature. After the registration of FIR, the father of deceased, Nawab Ali appeared before the investigating officer at RHC, Kuthiala Shaikhan that his son Muhammad Arshad has been referred from DHQ, Hospital to Meo Hospital, Lahore, who is presently under treatment there and after obtaining the information of presence of investigating officer in the Kuthiala Shaikhan Hospital, he appeared before him and submitted application in the company of one Muhammad Sajjad son of Muhammad Aslam and solicited that his version be brought on record. In the FIR, a simple club blow injury is attributed to petitioner Taswar Iqbal at the left side of head of Pervaiz Iqbal, whereas Nawab Ali, father of the deceased has described in the FIR that the accused Tasawar Ali also made two fire shots on the umbilicus of the deceased Muhammad Arshad. According to the contents of application submitted by Nawab Ali, he along with his close relative Muhammad Sajjad was present at the time and place of occurrence. It is intriguing if they were present at that time why they have not requested the police for recording their version at the first instance. Similarly, why their names were not incorporated in the FIR as PWs. In the light of supra mentioned facts the case of the petitioners Osama Riaz and Tasawar Iqbal squarely fall within the ambit of inquisitiveness. Reliance is place upon the following case laws "Babar Hussain v. The State and another" (2020 SCMR 871), "Zulfiqar v. The State" (2020 SCMR 457), "Ehsan Ullah v. The State" (2012 SCMR 1137).

6. There is another important aspect of the case that in the FIR the role of the petitioner Tasawar Iqbal is that he caused club blow on the left side of head of Pervaiz Iqbal. This injury has been declared as Shajja-i-Khafifah falling under section 337-A(i), P.P.C., which is bailable, similarly, role attributed to co-accused namely Muhammad Razzaq is that he caused club blow, which also landed on the right side of the head of Pervaiz Iqbal. The role attributed to co-accused Muhammad Razzaq is also similar in nature as described in the FIR to the petitioner Tasawar Iqbal. Co-accused Muhammad Razzaq has been granted bail after arrest vide order dated 14-12-2020 from the court of learned Additional Sessions Judge, Mandi Baha-ud-Din. The petitioner Tasawar Iqbal is entitled for the concession of bail on the ground of parity. Reliance is placed upon the following case laws "Muhammad Daud and another v. The State and another" (2008 SCMR 173), "Muhammad Azam v. The State" (2008 SCMR 249).

7. Furthermore, the investigation is complete. The petitioners are no more required by the police for further investigation. They are behind the bars since their arrest i.e. 24-08-2020. Fair and speedy trial was one of the fundamental rights of petitioners. No moral or legal compulsion existed to keep the petitioners behind the bars for an indefinite period, which would amount to punishment without trial. I sought guidance from the case laws cited as "Faqir Hussain alias Bali v. The State and others" (2014 SCMR 1502) and "Liaquat Hussain v. The State through Advocate-General of Azad Jammu and Kashmir, Muzaffarabad and another" (2015 PCr.LJ 1812).

8. For the above reasons, this petition is accepted and petitioners Tasawar Iqbal and Usama Riaz are allowed post-arrest bail subject to their furnishing bail bonds in the sum of Rs.5,00,000/- each with one surety in the like amount each to the satisfaction of learned trial Court.

9. It is, however, clarified that the observations made hereinabove are tentative in nature, and strictly confined to the disposal of this bail petition. However, it expected that the learned trial court will conclude the trial expeditiously preferably within a period of four months after the receipt of certified copy of this Court's order. SA/T-5/L Bail granted.