1996 P Cr (PLP)

M. Naeem Ullah Khan Sherwani for the Complainant. Ch. Asghar Ali for the State. This is an application for grant of bail to Muhammad Pervaiz in case F.I.R. No.238/95, dated 27-6-1995 registered under section 302/324/148/149, P.P.C. with Police Station Pasrur, District Sialkot.

2. The prosecution case is that the petitioner alongwith five others on 27-6-1995 at 7-00 p.m. attacked upon the real son of the complainant; the petitioner was armed with a dagger; it is alleged that the petitioner threatened others not to come near to the assailants.

3. The learned counsel for the petitioner in support of the petition contended that the petitioner's case is quite distinguishable from the case of Muhammad Ashraf, co-accused; whom bail was refused by the Court in Criminal Miscellaneous No.3398/B of 1995 for the reasons neither overt act is attributed to the petitioner nor motive is alleged to the petitioner in the F.I.R.; the petitioner is not related to the other co-accused like co-accused Muhammad Ashraf; the complete challan of the case has not been submitted so far and the petitioner at the time of occurrence was a student of matric further argued that the role attributed to the petitioner was not that of instigation as attributed to co accused Muhammad Ashraf and role attributed to him is of general nature and was not attributed any injury to the deceased; hence his case is one of further inquiry.

4. The bail application was opposed on the ground of vicarious liability; rejection of bail application of co-accused by the Court vide Criminal Miscellaneous No.3398/B of 1995 and further contended by the learned counsel that principal accused are still absconder and have been declared proclaimed offender.

5. I have heard the arguments advanced by the learned counsel for both the sides at some length and have gone through the record carefully.

6. Admittedly co-accused Asghar and Afzal are still at large and have been declared proclaimed offender; the accused persons except Rehmat are of the same age group; there is no animosity against the petitioner; the F.I.R. was lodged promptly and there was no time for consultation or reasons to involve the petitioner innocently and the petitioner was present at the spot during the course of incident.

7. The dictum laid down in case Muhammad Ismail v. Patten Malak and others reported as 1979 SCMR 91 relied upon by the learned counsel for the petitioner is not applicable to the facts of the case in hand as in the supra case; from the very averments in the F.I.R. it appeared that the dispute arose suddenly over the fixing of a hedge wire around the field of complainant; while the petitioner according to the averments in the F.I.R. being armed with dagger threatened others not to come near to the assailants and took an active part in the commission of the offence.

8. Having regard to the facts and circumstances of the case; in view of the detailed order passed in Criminal Miscellaneous No.3398/B of 1995; wherein mostly the same arguments were advanced by the learned counsel except of "instigation"; I am not inclined to interfere in the discretion exercised by the learned Additional Sessions Judge; further co-accused Asghar and Afzal are still absconding and certainly as contended by the learned counsel for the respondents threats might be given to the complainant; therefore, at this stage to release the petitioner means to keep the complainant in constant threats; resultantly this petition being devoid of merits is dismissed. N.H.Q./M-137/L Bail refused.