2005 PLP 1904 (MLD)

M. BILAL KHAN, J.

Akhtar Hussain son of Ali Muhammad and Muhammad Sajid son of Munawar, the petitioners, by filing the instant petition, seek post-arrest bail in case F.I.R. No.17, dated 27-1-2005, registered at Police Station Qadirbad, District Mandi Baha ud-Din for offences under sections 302, 109, 148, 149, P.P.C.

2. The prosecution case as it unfolded in the F.I.R. registered at the instance of Zakaullah son of Hassan Muhammad was that he was resident of Kauray Karam Shah and was a Zimindar; on the fateful day, about 6.30 p.m., he and his brothers Sanaullah and Muhammad Iqbal were present in their house, when a child knocked at their door and said that Ashraf Burjwala was calling him outside; his brother Muhammad Iqbal got up to answer the call, whereas he and his brother Sanaullah also followed him and came out of the house; as soon as the three brothers got out of their house, they saw Master Azmat, armed with .7-MM rifle, Munawar, armed with .12-bore double barreled gun, Akhtar (the petitioner), armed with .12-bore single barreled gun, Sajid (petitioner), armed with pistol .30-bore and two unknown persons, carrying rifles, standing there; when the said accused persons saw Muhammad Iqbal, Munawar raised a Lalkara that he should not escape and simultaneously fired at him, which missed; thereafter Master Azmat with his .7-MM rifle fired straight at Muhammad Iqbal hitting him in front of his chest on the left side, who immediately fell down and breathed his last; thereafter rest of the accused persons fled away from the spot while indulging in firing; on commotion raised by them, Qamar Abbas and Bashir Ahmad also arrived there. The motive according to the complainant was that Muhammad Ashraf, a brother of Master Azmat and others had been murdered by some unknown persons for which case F.I.R. No.377, dated 7-11-2004, under section 302/34 P.P.C. was registered at Police Station Qadirabad, in which the complainant had also been nominated; after that the accused persons had off and on been planning to murder them. The complainant further added in the F.I.R. that the accused persons with the connivance of Ijaz Ahmad and Ehsanullah had murdered his brother Muhammad Iqbal. Resultantly, the instant F.I.R. had been recorded.

3. The petitioners had been arrested on 18-2-2005 and are behind the bars ever since. Their plea for post-arrest bail did not find favour with the learned Additional Sessions Judge, Mandi Baha-ud-Din, who turned down their application vide order, dated 26-4-2005. Hence, the instant petition.

4. After hearing the learned counsel for the parties and examining the record brought by Qaiser Abbas, A.S.-I., it has been straightaway observed that the only role attributed to the petitioners was that while carrying firearms they were present at the scene of occurrence and that after the fatal shot had been fired by their co-accused Master Azmat, which caused death of Muhammad Iqbal, they decamped from the spot while indulging in aerial firing. During the course of examination of the record, it has also been observed that both the petitioners had been found to be innocent in four successive investigations carried out in the case; they had been recommended for discharge by Muhammad Qasim, DSP, Phalia and thereafter by Muhammad Afzal Virk, DSP (Headquarters), Mandi Baha-ud-Din. However, the learned Judicial Magistrate did not agree with the discharge report. The record also shows that no recovery of any crime weapon had been effected from the petitioners. Likewise, no empty of .30-bore pistol or .12-bore gun had been recovered from the venue of occurrence. The motive has also not been attributed against the present petitioners. In view of the attending facts and circumstances of the case, vicarious liability of the petitioners under section 149, Cr.P.C. will be determined at the time of trial. There is no substance in the argument of the learned counsel for the complainant that since the challan had been submitted, therefore, bail may not be granted to the petitioners. It is now well-settled that the mere fact that challan had been submitted in a murder case, will not render the provisions of C section 497(2), Cr.P.C. nugatory, if otherwise the petitioners are entitled to the concession of bail.

5. In view of what has been said above, the case of the petitioners is pre-eminently one of further inquiry within the meanings of subsection (2) of section 497 Cr. P. C. Accordingly, this petition is allowed and the petitioners are admitted to bail subject to their furnishing bail bonds in the sum of Rs.50,000 (Rupees fifty thousand) each with one surety each in the like amount to the satisfaction of the learned trial Court. N.H.Q./A-550/L Bail allowed.