2012 PLP 2568 (YLR)

Petitioner Arshad Masih prays for the grant of post-arrest bail in a case lodged on the written complaint of Haji Muhammad Nawaz Khan vide F.I.R. No.537 dated 25-6-2011 under sections 302/ 324/148/149, P.P.C. at Police Station City Daska, District Sialkot.

2. During the investigation, offence under sections 6/7 of the Anti-Terrorism Act, 1997 was added to the F.I.R. on 25-7-2011.

3. The petitioner while armed with a Danda along with his accomplices mentioned in the F.I.R while armed with fire arm weapons along with two unacquainted persons with a pre-designed manner allegedly mounted murderous assault upon the complainant party resulted in death of Niaz Khan, Shehbaz Khan and allegedly caused injuries to Dilawar Hussain Padhiar, Advocate, Gulab Imtiaz Khan and Junaid Khan.

4. Precisely the allegation against the petitioner is that he was holding a danda at the time of occurrence and he allegedly rounded the complainant party and allegedly assisted the co-accused in perpetrating the attack.

5. Learned counsel for the petitioner submits that the petitioner has not played any effective role in the commission of crime, even the shouting of lalkara has not been alleged against him. It has further been submitted that on account of previous enmity, the petitioner has been falsely involved and had the intention of the petitioner be to cause any injury to anybody inclusive of the deceased persons? then he might have brought some other weapon like pistol and carbine etc. and his presence with danda at the spot by itself appears to be risible. Further submits that investigation is complete and he is no more required for this purpose; the facts and circumstances of the case need further probe as to the involvement of the petitioner in the commission of crime alleged.

6. Learned DDPP assisted by the learned counsel for the complainant has vociferously argued that the place of occurrence is one of the decisive factors in this case, as it was the court premises; on the day of incident after being free, the petitioner along with his co-accused in a premeditated manner with unity of thought and community of interest, caused the death of two persons and wounded three persons; his presence has been established during the investigation, as he was one of the accused persons, who had come to the Court to appear and chances of mistaken identity do not exist because the alleged occurrence took place under the sun light and parti-cularly when the parties were previously acquainted with one and another; after the completion of investigation, report under section 173, Cr.P.C has been prepared, recommending the prosecution of the petitioner by placing his name in Column No. 3 and more so, the learned trial Court has indicted the petitioner, in this way, the trial has commenced, there-fore, by virtue of latest pronouncements by this Court as well as by the Hon'ble Supreme Court of Pakistan, the petitioner is not entitled for the concession of bail and in this way, if merits are discussed lest the case may be prejudiced of either of the parties.

7. After hearing the arguments and going through the record, it is vivid that the petitioner is named in the F.I.R but at the same time, one cannot be made himself oblivious that he did not cause any injury to any of the injured person and the deceased person. Mere presence of the petitioner at the spot with no overt act played by him, itself is a factor requiring further probe as to his involvement. The commencement of trial by itself does not make any bar to the grant of bail provided facts and circumstances permit as phraseology of subsection 4 of section 497, Cr.P.C. is very much pellucid that the bail can be granted even before the pronouncement of the judgment and this view of us has been expressed by the ex-cathedral judgment of the Hon'ble Supreme Court of Pakistan reported as Muhammad Ismail v. Muhammad Rafique and another (PLD 1989 SC 585). It is not transcendental to allow bail.

8. For what has been discussed above, the instant petition is allowed and the petitioner is granted bail provided his furnishing bail bonds in the sum of Rs.2,00,000 (rupees two lac only) with one surety in the like amount to the satisfaction of the learned trial Court. MWA/A-9/L Bail allowed.