2007 PLP 935 (YLR)

IJAZ-UL-HASSAN KHAN, J.

As per F.I.R., on the day of occurrence i.e. 30-4-2006, complainant Fazal Hamid along with his nephew Naeem was present in the shop of his brother Nek Halim deceased, near Dargai `phatak' when in the meanwhile at about 9-40 a.m. Ali Shah petitioner and his son Ali Khan, absconding co-accused, came to the shop and asked the deceased to come out. Ali Khan was armed with Kalashnikov. The accused exchanged hot words and started grappling with the deceased. In the process the accused caught hold of the deceased and threw him in the nearby canal. Thereafter Ali Khan, absconding co-accused started firing, as a result of which, the deceased was hit and succumbed to the injuries while 'enroute' the Hospital. After the occurrence, the accused bolted away. A dispute over a loan was stated to be the motive leading to the incident.

2. The petitioner was arrested on 5-7-2006. He moved an application for his release on bail, which was rejected by learned Additional Sessions Judge/Izafi Zilla Qazi, Malakand at Batkhela. The petitioner has approached this Court with the similar prayer and in support of bail application, Mr. Salim Khan, Advocate for the petitioner, contended that the petitioner has not been attributed any injury caused to the deceased even no overt act towards the commission of his death was alleged against the petitioner; that presently there is no evidence at all to establish that the petitioner shared any common intention with the other co-accused and that even no motive has been attributed to the petitioner for participating in the alleged occurrence culminating in the murder of Nek Halim deceased. In this regard reliance was place on Faraz Akram v. The State (1999 SCMR 1360), Rah Nawaz and 13 others v. Mustageem Khan and 14 others (1999 SCMR 1362), Muhammad v. The State (1998 SCMR 454), Muhammad Akram v. The State (2005 PCr.LJ 596 Lahore) and Muhammad Mansha v. The State (2006 PCr.LJ 47 Lahore). 4. (sic) Though the above contentions could not be controverted by Mian Jamal Shah, Advocate appearing on behalf of the State, assisted by Mr. Nadir Khan, Advocate for the complainant, yet they opposed the bail on the ground that the petitioner has been nominated in a promptly lodged F.I.R.; that the petitioner remained fugitive from law for some time and in view of the fact that trial has already commenced, concession of bail has rightly been refused. To augment the contention, reliance has been placed on Khadim Hussain and 5 others v. Sher Afzal and another (2000 PCr.LJ 1974), Babar Hussain v. Muhammad Rashid Khan and another 2000 PCr.LJ 980; Allah Ditta and others v. The State (1990 SCMR 307) and Muhammad Bashir v. The State (2000 SCMR 78).

5. The petitioner is in jail ever since his arrest on 5-7-2006. No overt act has been attributed to the petitioner save for facilitating his son Ali Khan, absconding co-accused in throwing the deceased in the nearby canal. The circumstances reveal that it was only Ali Khan co-accused who has fired at the deceased. The case of the petitioner calls for further inquiry into his guilt within the purview of subsection (2) of section 497, Cr.P.C. The question of vicarious liability of the petitioner will be determined at the trial. The mere fact that the trial has commenced or petitioner absconded after the occurrence, by itself, cannot be considered a good ground to refuse the relief of bail to an accused person, if otherwise his case is found fit for the grant of bail. Resultantly, this bail application is accepted. The petitioner shall be released on bail in case he furnished bail 'bonds in the sum of Rs.3,00,000 with two sureties each in the like amount to the satisfaction of Illaqa Judicial Magistrate, who shall see that the sureties are local and men of means.

6. Needless to add here that the observations made above, 'are tentative in nature and relate to the order in hand only. I had allowed bail to the petitioner for reasons to be recorded later. Above are the detailed reasons of my short order dated 3-11-2006. H.B.T./40/P Bail granted.