1997 P Cr (PLP)

S. 497

Penal Code (XLV of 1860), S.302/324/148/149

Bail

Accused was named in the F.I.R. and had been shown to have fired with a .12 bore gun which though did not hit anybody, but, prima facie, his vicarious liability existed with his co-accused who had come alongwith him to kill the deceased by making fatal shots at him and out of them two were still absconding

Eye witnesses having linked the accused with the murder of the deceased alongwith his co-accused, opinion of the Investigating Officer regarding innocence of accused was not relevant at such stage

Evaluation of the defence version at bail stage was not possible nor it could be put in juxtaposition with the prosecution case

Bail was declined to accused in circumstances. Rehmat Ullah alias Rehman v. The State and another 1970 SCMR 299 ref. Sardar Muhammad Ishaq Khan for Petitioner. Malik Muhammad Nawaz for the Complainant. Raja Ghazanfar Ali for the State. The petitioner is arraigned alongwith others for an offence under section 302134!145/149. P.P.C. vide F.I.R. No.92, dated 8-5-1996 registered at Police Station Mandra, District Rawalpindi, on the ground that all of them after forming an unlawful assembly and in prosecution of the common object committed the murder of Manzoor Hussain and caused injuries to Mst. Tai Begum P. W .

2. Learned counsel for the petitioner has submitted that the petitioner is entitled to bail because no injury is attributed to him to any person: that he has been found innocent in the investigation conducted by Basharat Mahmood D.S.P. and his name is placed in column No.2 of the challan; that there is a cross-version in defence for which a complaint has already been lodged because the petitioner was also injured during the occurrence and had suffered a number of fire-arm injuries on his person on account of the alleged aggression by the complainant's side and that the recovery of .12 bore gun was not effected from him although his licensed rifle was taken into possession after the same was produced by him before the police.

3. In the light of foregoing submissions it was contended that the petitioner was entitled to bail particularly when he had been found innocent by the Investigating Officer. Though such finding was allegedly not a legal evidence, yet being adverse to the prosecution puts ones mind on inquiry as to the veracity of the complainant's case. As such, it would make out a good case for bail for the petitioner as held in Rehmat Ullah alias Rehman v. The State and another 1970 SCMR 299.

4. The bail application is opposed by the learned State Counsel assisted by the learned counsel for the complainant on the ground that the opinion of the Investigating Officer is not binding on the Court particularly when it is based on the statement of one witness whereas the eye-witnesses have been ignored while forming such opinion; that the petitioner is named in the F.I.R. and a specific role is attributed to him by the eye-witnesses in connection with the murder of the deceased that the injuries on the person of the petitioner would prima facie show that he had participated in the occurrence being present at the spot and that his co-accused namely Muhammad Yousaf and Javaid Iqbal have been declared as absconders in this case which too would put the Court on alert to grant bail to the present petitioner who may also escape after earning bail. The mere fact that the fire made by the petitioner did not hit anybody would not automatically entitle the petitioner to the right of bail as his vicarious liability is prima facie established with his co-accused in killing the deceased. Reliance is placed on S.M. Zaheer v. The State 1969 SCMR

107. Munawar v. The State 1951 SCMR 1092, Rashid Khan and another v. The State and others 1956 SCMR 933 and Syed Ikhlaq Hussain and others v. The State 1995 PCr.LJ 1114 (Lahore).

5. I have considered the above submissions and find that the deeper appreciation of the merits of the case at this stage is not advisable lest it may prejudice the trial itself. It is enough to say that the petitioner is named in the F.I.R. and has been shown to he armed with a .12 bore gun and made a fire which though did not hit anybody but prima facie his vicarious liability would co-exist with his co-accused who had come alongwith him to kill the deceased by making fatal shots at him and out of them two are still absconding. The opinion of the Investigating Officer will not he relevant at this stage as all the eye witnesses have linked the petitioner with the murder of the deceased alongwith his co-accused. The, evaluation of the defence version at this stage is not possible nor it can he successfully put in juxtaposition with the prosecution case at the bail stage. The petition being meritless is dismissed. N.H.Q./M-323JL Bail refused.