2009 PLP 1230 (YLR)

ZAFAR IQBAL CHAUDHRY, J.--Through this petition under section 497, Cr. P. C. Abdur Rehman and Muhammad Nasim petitioners seek post arrest bail in case F.I.R. No.594 dated 5-12-2007 registered under sections 302/324/109, P.P.C. at Police Station Jhal Chakian District Sargodha on the application of Ikram Ullah.

2. The brief allegation in the F.I.R. is that on 5-12-2007 at about 12-00 noon the complainant along with Muhammad Akram and Asmat Ullah was cutting fodder when Muhammad Aamer armed with pistol .30 bore came at the spot and raised lalkara that he had come to take revenge of his deceased father and fired at Muhammad Akram hitting him on his right ankle. He again fired 'at said Akram hitting on the back side who fell down. It is further alleged that Aamer also fired many shots hitting Akram on his right side of neck, right and left shoulder.

3. The motive behind the occurrence was alleged that in the year 1999 father of Muhammad Aamer had been murdered by Muhammad Akram and that the above-said occurrence had taken place on the instigation and abetment of Abdur Rehman and Muhammad Nazim petitioners.

4. Learned" counsel for the petitioners submits that the petitioners have been falsely involved in this case due to previous enmity with the complainant party. It is further submitted the only allegation against the petitioners was that they made abetment for the commission of this offence and on their instigation Muhammad Aamer the principal accused committed the murder of Muhammad Akram deceased on the motive that prior to this occurrence he had murdered the father of Muhammad Aamer, but later on he was acquitted by the Hon'ble Supreme Court of Pakistan. It is further submitted that as the petitioners have not been attributed any injury to the deceased. It is also submitted that the veracity of the evidence regarding the abetment is still to be considered by the trial court and the petitioners are in the judicial lock-up for the last about five months and are not required for the purpose of investigation. Lastly it is submitted that Muhammad Nazim petitioner as per school leaving certificate was also minor at the time of the alleged occurrence.

5. Learned DPG assisted by the learned counsel for the complainant submits that the petitioners are not entitled to the concession of bail because being master mind they had planned for the murder of the deceased with the main accused to commit this murder and the murder has been committed at their instance. It is further submitted that there is sufficient evidence on the record to connect the petitioners with the alleged crime, who also remained fugitive from justice for about five months and having been arrested in some other case they were joined in the investigation of this case. It is also submitted that the trial has also commenced and the petitioners are not entitled for the concession of bail. Relies upon "2000 MLD 1172", "2006 SCMR 1292" and "2006 YLR 3041". It is lastly submitted that the trial has also commenced.

6. Heard. Record perused. The F.I.R. does not find mention that as to when and where the alleged conspiracy had been hatched by the petitioners with the main accused for the murder of the deceased. Mere giving names of two witnesses in the F.I.R. is not a conclusive evidence against the petitioners and possibility of their false implication due to the previous enmity by widening the net cannot be ruled out as the tendency has been developed in the society that" maximum number of accused are involved in the occurrence by attributing roles of general allegations to them. For the time being the veracity of the evidence collected by the prosecution into the allegation levelled against the petitioners has yet to be determined by the learned trial court after recording the evidence. The prosecution evidence also does not disclose as to what precautionary measures were adopted after the alleged abetment to save the life of the deceased after receiving the information of abetment. So far as the involvement of the petitioners in another case is concerned according to the Investigating Officer they were declared innocent in that case. In such facts and circumstances the petitioners have succeeded in making out a case of further inquiry. The case-law cited by the learned counsel for the complainant runs on different footing. It is well-settled law that mere commencement of trial is not a ground for outright rejection of bail when the case has become one of further inquiry and benefit of doubt at any stage of the case has to go to the accused. Moreover, keeping in view the above facts and circumstances the petitioners cannot be kept behind the bars for indefinite period for the reason that the police failed to arrest them for a certain period. Hence this petition is accepted and the petitioners are admitted to bail subject to their furnishing bail bonds in the sum of Rs.1,00,000 each with two sureties each in the like amount to the satisfaction of the learned trial court. H.B.T./A-5/L Bail granted.