2012 P Cr (PLP)

MUHAMMAD ALI MAZHAR, J.

The applicant has filed this Bail Application under section 497, Cr.P.C. in Crime No.75 of 2011, lodged under sections 337A(ii), F(ii), L(2), H(2), 504, 147, 148, 149, 311, P.P.C., at Police Station Dubar.

2. The complainant in the F.I.R. has alleged that one Nizamuddin is his cousin and Jahan Jagirani raised the allegation of being KARAP against his cousin. On 17-8-2011, the complainant along with his five relatives were grazing their cattle when they saw that 22 persons, (Complainant has mentioned 22 names in the F.I.R. with parentage, out of which the name of applicant is appearing at serial No.13), who came there and used filthy language and also stated that they are the persons of Karo Hakim Jagirani, thereafter, accused Bakhat instigated the other persons to drag the cattle and the accused persons who were armed with Lathies and hatchets and some of them were equipped with fire arm weapons caused hatchet and lathi injuries to complainant and his witnesses and thereafter by making aerial firing accused went away.

3. The learned counsel for the applicant argued that though the applicant's name is mentioned in the F.I.R. but no specific allegation/role is mentioned against him. Even it is not mentioned whether he has caused any injury to the alleged injured persons. Only it is mentioned that present applicant was armed with hatchet. Learned counsel further argued that since no specific role has been assigned to the applicant out of twenty two persons who have been nominated in the F.I.R., therefore, case of the applicant requires further inquiry to prove his guilt or innocence.

4. The learned counsel further pointed out that out of 22 nominated accused, seven persons have been placed in Column No.2 of the challan, including the accused Bakhat who had allegedly instigated other accused persons to drag the cattle. He further argued that this is a case of counter version as the applicant's cousin Jalal had lodged the F.I.R. No.76 of 2011 against the complainant party on 18-8-2011 in the same P.S.

5. In rebuttal, the learned APG for the State argued that six persons have been injured in the incident. Complainant has also raised allegation of robbery of 25 buffaloes, therefore, he opposed bail application. However, he did not controvert that seven persons have been shown in Column No.2 including Bakhat who allegedly instigated other persons, but he argued that report of I.O. is not binding and court may join all such let off accused in future.

6. After hearing the arguments, I have reached to the conclusion that so far as the plea of counter version is concerned, it is clear that the reported incidents in both the F.I.R(s) have no similarity. Both the F.I.Rs. are showing different incidents happened/occurred at different places so question of determining that who was aggressor or who was victim need not to be dilated upon for the purposes of deciding the bail application. Another important aspect that cannot be lost sight that in the F.I.R., twenty persons have been nominated including the applicant but no specific allegation has been levelled against the present applicant except that he was present at the site with hatchet.

7. The main allegation in the F.I.R. is that all the accused used filthy language and thereafter accused Bakhat instigated other accused persons to drag the cattle and thereafter all the accused persons who were armed with lathies and hatchets caused blows to complainant and his witnesses and it is further stated that accused who were armed with weapons went away after making aerial firing. No specific role of applicant is mentioned in the F.I.R. to show that whether he had caused any hatchet blow to the complainant or his witnesses or drag the cattle. Apparently, in such a long list of accused persons nominated in the F.I.R., the role and general allegation against the applicant requires further inquiry.

8. In the judgment reported in 2004 SCMR 864, (Yaroo v. The State), the honourable Supreme Court has held that allegations against the accused were general in nature. No injury whatsoever to the deceased has been attributed to the accused, therefore, accused was granted bail in that case. Similarly, the Hon'ble Supreme Court in its latest judgment reported in 2011 SCMR 161, (Abid Ali v. The State), held that bail cannot be withheld as punishment. It has been further observed that even for the purposes of bail, law is not to be stretched in favour of prosecution as laid down by the Hon'ble Supreme Court in its judgment reported in PLD 1972 SC

277. In another judgment, reported in 1980 SCMR 784, (Jaffar v. The State), bail was granted by Hon'ble Supreme Court in a murder case on the ground that material on record is not showing that which of the accused caused fatal injury leaving room for consideration regarding common intention of other accused to kill the deceased.

9. So far as the question of common intention or vicarious liability is concerned, the honourable Supreme Court in its case reported in 2010 SCMR 1178 (Dilmurad v. The State) has held that at the bail stage issue of common intention is normally one of further inquiry unless there are other compelling reasons and circumstances to reach a different conclusion i.e. by way of other pieces of evidence, which could definitely connect the applicant/accused with the crime in question.

10. The main consideration for grant of bail under subsection (2) of section 497, Cr.P.C. is that if the Court on the basis of tentative assessment of evidence forms an opinion that prima facie reasonable grounds existed to believe that accused has not committed an offence with which he is being charged, he would be allowed bail by virtue of subsection (2) of section 497, Cr.P.C. Actual test for grant or refusal of bail rests in availability of reasonable grounds, which mean the grounds which appeal to a reasonable and prudent man. The expression reasonable ground denotes a stronger meaning then a mere bald allegation of suspicion.

11. After considering the material available on record, I am of the view that case of the applicant falls under the phrase of further inquiry in terms of section 497(2), Cr.P.C. Consequently, this Bail application is allowed. The applicant is granted bail subject to his furnishing solvent surety in the sum of Rs.200,000 (Rupees two hundred thousands only) with PR bond in the like amount to the satisfaction of the trial Court. The observations made hereinabove are tentative in nature and would not affect the case of either party. H.B.T./M-172/K Bail granted.