1996 PLP 1361 (MLD)

Rai Muhammad Tufail Khan Kharal for Petitioner. Syed Saeed Ahmad Trimizi for the State. . The petitioners have moved this application for post-arrest bail in case registered against them vide F.I.R. No.40 dated 7-2-1995 under section 302/34/ 109, P.P.C. at Police Station Kotwali, District Faisalabad. Their application for bail. was rejected by the learned Additional Sessions Judge, Faisalabad vide order dated 1-2-1996. Hence the present application.

2. The allegation against them is that a day prior to the day of occurrence, the petitioners hatched a conspiracy to commit the murder of Dilawar Hussain, deceased, which fact was disclosed by one Jaisal to the complainant on 6-2-1995.

3. Learned counsel for the petitioners contends that the petitioners were not present at the scene of occurrence; that the witness cited by the prosecution in whose presence the petitioners hatched conspiracy to commit the murder of the deceased is inimical towards them; that if at all the conspiracy was hatched in the presence of the P.Ws a day before the occurrence, the same was not brought to the notice of the complainant or the police which meant that it was an afterthought just to rope in the innocent petitioners; that the challan has not yet been put in Court and the petitioners are behind the bars for the last seven months and their person is no longer required for the purpose of investigation.

4. On the other hand, learned counsel for the State has vehemently opposed the grant of bail and contends that the murder was committed at the behest of the petitioners and they are equally liable for the act of the principal accused and the case against them falls within the prohibitory clause of section 497, Cr.P.C.

5. I have heard the learned counsel for the parties and have perused the record. Admittedly the petitioners were not present at the time of occurrence. The allegation against them is that they conspired with the co-accused to commit the murder of the deceased in presence of the P. Ws. The superior Courts generally grant bail to an accused who is alleged to have raised a Lalkara or held the deceased in his clasp, though his presence is established at the spot, on the ground that his case falls within the scope of further inquiry. Thus the case of the petitioners being on lower footing than an accused who raises Lalkara, is also covered by subsection (2) of section 497, Cr.P.C, because the allegations of the prosecution would be scanned at the proper time. It is not denied by learned counsel for the State that the petitioners are behind the bars for the last eight months, and they are no more required for the purpose of investigation.

6. In the circumstances, this petition is allowed and the petitioners are admitted to bail in the sum of Rs.50,000 (fifty thousand rupees) with one surety each in the like amount to the satisfaction of A.C./Duty Magistrate, Faisalabad. N.H.Q./S-8/L Bail allowed.