2007 PLP 1179 (YLR)

IJAZ AHMAD CHAUDHRY, J.

Through this application under section 497, Cr.P.C. Shahid Hussain, petitioner seeks post-arrest bail in a case F.I.R, No.156 of 2006, dated 10-8-2006 registered under sections, 302, 324, 337/A(i), (ii), (vi) L(l) and L(2), 148/149, P.P.C. at Police Station Nawan Lahore, District T.T. Singh on the application of Fayyaz Ahmad, the complainant.

2. The brief facts of the case as alleged in the F.I.R. are that on 5-8-2006 at about 7-30 p.m. the complainant along with his son Muhammad Usman and other persons of the locality had participated in a Punchayat held at Chak No.278/J.B. in respect of a theft committed in the Poultry farm of the complainant; that during the conversation hot words were exchanged and the accused persons of this case started hurling abuses to Muhammad Usman (son of the complainant), who forbade them from doing so. Thereupon Waqas co-accused gave slaps to Usman. In the meanwhile Waqar co-accused inflicted Danda blows to Usman first hitting over his right ear and head and second on rear side of his head, who in an unconscious condition fell on the ground and then Shahid Hussain (petitioner) raised a Lalkara not to spare the complainant party. Then Adeel Masih and Salamat Masih co-accused caught hold of Basharat (nephew of the complainant) and gave beating to him. In the meantime, Ahad Hussain co-accused gave two blows with datar hitting on the head of. Basharat (victim), who fell on the ground while smeared with blood and then Adeel Masih and Salamat Masih co-accused gave fist blows to Basharat (victim). On seeing this Rehan Ashraf and Saeed Ahmad P.Ws. along with other attendants of the Punchayat interfered and rescued the complainant party from the above said accused persons. Then both injured were escorted to the Rural Health Centre, Nawan Lahore for their treatment, but due to non-availability of first aid there, they were referred to the Allied Hospital, Faisalabad by the concerned doctor.

3. The motive behind the occurrence was alleged that a few days prior to the occurrence, a theft had been committed at the Poultry farm of the complainant and before the Punchayat the accused persons admitted to have stolen some articles and on making demand for the return of remaining articles by Muhammad Usman and Basharat victims, they were caused injured by the accused persons.

4. The learned counsel for the petitioner has contended that there is delay of 5 days in lodging the F.I.R. without any explanation; that during the incident some persons from the accused side had also been injured, but this fact had been concealed by the complainant; that a private complaint has been filed on behalf of accused party due to non-considering the cross-version by the police, which is pending in the Court of learned Judicial Magistrate, Gojra; that the trial in police case has not commenced so far and there is no likelihood of the conclusion of the trial in the near future; that the petitioner had only been attributed the role of raising Lalkara during the mid of the incident and he had not caused any injury to the injured P.W. or the deceased; that the case of the petitioner is of further inquiry, who is in jail and no more required to the police and his further detention in jail will serve no useful purpose to the prosecution.

5. The learned counsel for the complainant assisted by the learned Deputy Prosecutor General has opposed this bail petition on the ground that the petitioner is named in the F.I.R.; that in application for bail after arrest filed by Adeel Masih and Salamat Masih; is pending before another Bench of this Court and this fact has been concealed by the petitioner in the application and the propriety demands that both the applications should be heard together; that report under section 173, Cr.P.C. has been submitted in the learned trial Court and trial also commenced in which the accused persons had not engaged their defence counsel till 11-1-2007 and now the case has been fixed for 20-1-2007; that in the private complaint, the petitioner also admitted his presence at the spot during the occurrence, but the version of the petitioner had been found incorrect during the investigation; that the co-accused persons had caused injuries to the deceased on raising Lalkara by the petitioner during the incident and he was attributed direct motive to commit the murder of the deceased.

6. I have heard the arguments advanced by learned counsel for the parties and perused the record with due care and caution.

7. From the contents of F.I.R., it is found that during the incident Muhammad Usman son of the complainant was injured by Waqar Ahmad co-accused and in the mid of incident, the petitioner had raised Lalkara upon which Ahad Hussain gave injuries to Basharat injured P.W. It has been found that the petitioner neither had caused any injury to injured P.W. nor to the deceased. Whether the petitioner had 1 shared common intention with co-accused is a question of further inquiry. Even 'otherwise, the incident had taken place at the spur of moment as per contends of F.I.R. Moreover, submission of report under section 173, Cr.P.C. is not a bar to the grant of bail to the accused at any stage of the case, who succeeds to make out a case of further inquiry. So far as the contention raised by the learned counsel for the complainant that bail application of co-accused is pending before another Bench of this Court and this application should be heard therewith is concerned, suffice it to say that admittedly the said application has not been decided so far and the principle laid down in "Zubair's case" is not applicable. Even otherwise, it has been pointed out by the learned counsel for the parties that the said bail application filed by the co-accused has been ordered to be placed before the Honourable Chief Justice for appropriate orders keeping in view the pendency of this application. Thus, I find no reason to keep this application pending when the petitioner has succeeded in making out a case of further inquiry. For the foregoing reasons, the instant bail petition is accepted and the petitioner is admitted to bail subject to furnishing bail bonds in the sum of Rs.1,00,000 with two sureties each in the like amount to the satisfaction of the learned trial Court. N.H.Q./S-7/L Bail allowed.