2019 P Cr (PLP)

SADIQ MAHMUD KHURRAM, J.

Through this petition filed under section 497, Cr.P.C., the petitioner namely Ameer Bakhsh is seeking post-arrest bail in the case FIR No.179 of 2018, dated 17.06.2018, registered at Police Station Choti, District Dera Ghazi Khan, in respect of offences under sections 302, 148, 337-L(2), 337-A(i), 337-F(i), 337-F(v) and 149, P.P.C.

2. The allegation as against the petitioner, namely Ameer Bakhsh, culled from the evidentiary material produced before the Court, is that the petitioner held the deceased namely Muhammad Bakhsh alias Haji Muhammad in his clasp whereas the co-accused inflicted soti blows on the person of the deceased.

3. I have heard the learned counsel for the petitioner, the learned Deputy District Public Prosecutor and the learned counsel for the complainant and have also gone through the record of this case with their able assistance.

4. This is bail after arrest and only tentative assessment is permissible at this stage. It has been noticed by this Court that although the petitioner is named in the FIR but the facts remains that no injury to the deceased is attributed to him. The only allegation of catching hold of the deceased is attributed to the petitioner whereas his co-accused gave sota blows to the deceased and caused fatal injuries. It does not appeal to a prudent mind that a person would catch hold of deceased when his co-accused were inflicting fatal injuries to deceased, putting his own life at stake. Such type of allegations are very easy to level but very difficult to prove. During investigation it has come on record that he was merely present at the place of occurrence. This also prima facie makes the case against the accused one of further inquiry and probe which can only be undertaken by the trial court. It is settled law that vicarious liability of the accused is to be determined by the learned trial court after recording evidence. Reliance is placed on the case of Basharat Hussain v. Ghulam Hussain and others (1978 SCMR 357) wherein the august Supreme Court of Pakistan refused to interfere with the order of this Court granting bail to accused person in a case who had held the deceased to facilitate the murder by the co-accused. While refusing leave to appeal in the above case, the august Supreme Court of Pakistan made the following observations: "It is quite clear from the FIR that respondent No. 1, was alleged to have held the deceased when his son Abdul Qayyum hit the deceased on the head. Respondent No. 1, is therefore, charged with facilitating the murder of the deceased. It has been rightly pointed out by the High Court that this question requires further enquiry, and the petitioner was entitled to bail." Mere involvement in a heinous offence is no ground for refusing bail to an accused who otherwise becomes entitled for the concession of bail. The petitioner was arrested in this case on 27.01.2018, since then he is behind the bars. The petitioner is a previous non-convict. The investigation qua him is complete and his person is no more required for further investigation, therefore, his continuous incarceration would not serve any beneficial purpose at this stage.

5. For what has been discussed above, the case of the petitioner becomes one of further inquiry covered by subsection (2) of section 497, Cr.P.C. Liability of petitioner for the said offences would be determined by the learned trial court after sifting the evidentiary worth of the material produced before the same. Till then, case of the petitioner would be within the domain of section 497(2), Cr.P.C. calling for further inquiry into the petitioner's guilt. The petition in hand is accepted and the petitioner is admitted to post-arrest bail subject to his furnishing bail bonds in the sum of Rs.500,000/- (rupees five hundred thousand only) with two sureties each, in the like amount, to the satisfaction of learned trial court.

6. Needless to mention that any observations made in the above order are tentative in nature and shall not influence the trial court. MQ/A-49/L Bail granted.