2005 PLP 499 (MLD)

Mian Arshad Latif for Petitioner. Qamar‑uz‑Zaman for the State. Muhammad Asghar, S.I. with record. Through this application under section 497, Cr.P.C. the petitioner seeks bail after arrest in case F.I.R. No.217 of 2003, dated 13‑8‑2003 registered under section 3027109/148/149, P.P.C. at Police Station Tulamba, District Khanewal on the statement of. Husnain Ahmad.

2. Brief allegation in the F.I.R. is that on 12‑8‑2003 at about 4‑00 a.m. the complainant along with his brother Sajjad Hussain was present in his house when Muhammad Sarwar, Muhammad Saleem present petitioner and Muhammad Afzal came there while riding on a motorcycle and they talked with Sajjad Hussain, who went away with them but till night he did not turn up. As the complainant family had enmity with Churiyana Bradri due to previous murder case so he went in search of his brother. The complainant went to the house of Muhammad Younas along with Muhammad Afzal and Abdul Ghaffar and enquired about Sajjad Hussain. The family members of Muhammad Younas told that Sajjad Hussain Muhammad Younas and Muhammad Saleem present petitioner had gone to receive amount from Khuda Bakhsh. But when they reached at the spot, they saw that Muhammad Afzal, Khuda Bakhsh and two other unknown persons, who can be identified, had encircled the complainant's brother Sajjad Hussain outside Baithak of Khuda Bakhsh. On seeing the complainant and his companion Muhammad Saleem petitioner instigated Khuda Bakhsh that the family members of Sajjad Hussain have arrived so finish their work, on which, Khuda Bakhsh made a fire shot with his .30 bore pistol upon Sajjad Hussain hitting him on the backside of his neck. Thereafter the accused persons ran away from the spot whereas Sajjad Hussain succumbed to the injury. Hence, the present case.

3. Learned counsel for the petitioner contends that co‑accused Muhammad Afzal has been granted bail by the learned Additional Sessions Judge while Muhammad Younas has been granted bail by this Court while accepting Criminal Miscellaneous No.1286‑B of 2004, vide order dated 21‑6‑2004 and the case of present petitioner is at par with the aforesaid accused. It is also contended that the petitioner had not caused any injury to the deceased though he was armed with pistol and this case falls within the purview of further inquiry.

4. On the other hand, learned counsel for the State opposes this application on the ground that the challan has been submitted in the Court and the petitioner is named in the F.I.R. It is also contended that the petitioner had raised Lalkara and offence falls within the prohibitory clause.

5. I have heard the learned counsel for the parties and also perused the record. The case of the petitioner is not distinguishable from the case of his co‑accused Muhammad Younas and Muhammad Afzal as they also took the deceased according to the complainant from his house. Even otherwise, the only distinguishable factor is that he had raised Lalkara and though he was allegedly armed with pistol yet it is strange that instead of firing at the deceased he asked Khuda Baksh to fire at the deceased. The case of the petitioner is thus covered by subsection (2) of section 497, Cr.P.C. In such circumstances, following the rule of consistency, this application is accepted arid the petitioner shall be released on bail subject to his furnishing bail bonds amounting to Rs.1,00,000 (Rupees one lac only) with two sureties each in the like amount to the satisfaction of learned Judicial/Ilaqa Magistrate. N.H.Q./S‑226/L Bail allowed.