2011 PLP 1234 (MLD)

MAZHAR IQBAL SIDHU, J.

Munir (Munir Ahmad) petitioner seeks post-arrest bail in a case registered vide F.I.R. No.509 dated 4-9-2010 under section 302/392, P.P.C. at Police Station Sadar, Bahawalnagar on the complaint of Noor Ahmad. During investigation offences under section 411/34, P.P.C. were added to the F.I.R.

2. In narrow compass prosecution case set up by Noor Ahmad complainant in F.I.R. is that on 4-9-2010 at 11-30 a.m. when he along with his son Muhammad Ashiq alias Mian Muhammad Akram was proceeding towards Mauza Momeka on a motorcycle. On reaching in the area of Togera Sharif, four persons having armed came in front of the motorcycle and aimed their weapons at motorcycle directing to stop the same and thereafter accused persons namely Muhammad Ramzan alias Jani, Ghulam Farid alias Bahu and Saeed Ahmad alias Kali (P.Os.) who were identified by the complainant and P.Ws. whereas another unacquainted person accompanying them can be recognized if comes before P.Ws. and the complainant. It has further been alleged that Muhammad Ashiq deceased, son of the complainant clutched Muhammad Ramzan alias Jani accused (P.O) whereupon Muhammad Ramzan raised a Lalkara that deceased was not releasing him and he be fired at, upon which co-accused Saeed Ahmad alias Kali (P.O.) made fire shot with his rifle hitting Muhammad Ashiq on his left flank who fell on the ground and ultimately died in DHQ Hospital, Bahawalnagar. It has further been alleged that accused mentioned in F.I.R. got away from the spot while riding on motorcycle of the complainant party. Hence, this case.

3. Petitioner on the basis of additional statement of the complainant supplementing to F.I.R. recorded on 19-10-2010 was apprehended and thereafter his post-arrest bail application was refused by the learned trial court vide order dated 28-12-2010. Hence, instant bail application.

4. Learned counsel for the petitioner orchestrates his arguments that petitioner is not nominated in the F.I.R. whereas he is real brother of Saeed Ahmad alias Kali co-accused and complainant has widen mesh by involving him though no description of the unacquainted person has been mentioned in the F.I.R. and that test identification parade is inconsequential in this case on the ground that before holding it complainant party had already made supplementary statement naming the petitioner with details and he has been falsely involved in this case in order to desist him from prosecution of case of co-accused being brother. Further argued that absconsion of the co-accused would not be treated as bar for grant of bail to an accused who is behind the bars save as his case is made out for further inquiry. Learned counsel for the petitioner has embellished his arguments by referring to and relying upon cases titled Wisal Khan v. The State (1992 PCr.LJ 398) and Wazir and 2 others v. The State (1993 PCr.LJ 1007).

5. Learned D.P.-G. assisted by learned counsel for the complainant has opposed the bail application on the grounds that although petitioner is not nominated in the F.I.R. yet subsequently by way of additional statement of the complainant supplementing to the F.I.R., he has been named and later on he has been identified in the test identification parade held in the premises of District Jail, Bahawalnagar; during investigation petitioner has been found involved coupled with recovery of the crime weapon and offence with which the petitioner has been charged falls within the prohibitory clause of section 497, Cr.P.C. and praying that with commencement of trial, at this stage it is not appropriate to go into the merits of the case while disposing of bail application

6. I have heard learned counsel for the parties as well as learned D.P.-G. and have also gone through the record.

7. Record demonstrates that petitioner was not nominated in the F.I.R. and even no description of unacquainted culprit has been mentioned in the F.I.R. During investigation, complainant made his additional statement supplementing to the F.I.R. on 19-10-2010 wherein he named petitioner as one of the culprits, then test identification parade was held and ultimately, petitioner was arrested in this case on 13-10-2009 and after accomplishment of investigation, he was sent to judicial lock-up. Notwithstanding all accomplices of the petitioner have been declared proclaimed offenders but nobody can be punished for the misdeeds of another and no person can be kept behind the bars as hostage for absconding his co-accused. Commencing of trial by itself is no bar for grant of bail in the light of section 497(4) of Cr.P C. Relying upon judgments referred to by learned counsel for the petitioner, it appears that case of the petitioner squarely falls under section 497(2), Cr.P.C., therefore, instant application is accepted and petitioner is admitted to post arrest bail subject to his furnishing bail bonds in the sum of Rs.2,00,000 (two lacs) with two sureties in the like amount to the satisfaction of learned trial court. N.H.Q./M-104/L Bail allowed.