1995 P Cr (PLP)

Malik Rab Nawaz Noon for Petitioner. Sajjad Hussain Shah, AA.-G. for the State. Khalid petitioner seeks his post-arrest bail in a case F.I.R. No.51, dated 5-2-1994, registered under section 302/34, P.P.C. at Police Station Waris Khan against the petitioner and another, namely, Ashiq, for the alleged murder of Mustafa deceased, The prosecution story in brief is that on 5-2-1994 at 4-30 p.m. when Mustafa deceased and Ashiq, co-accused of the petitioner, were playing tops, alongwith other boys, a quarrel ensued between, the deceased and the aforesaid co-accused and abuses were exchanged between them, in view whereof Ashiq co-accused rushed towards his house and came back with a Chhuri, accompanied by the petitioner. It was further alleged that the petitioner had caught hold of the deceased, while his co-accused Ashiq inflicted a Chhuri blow on the chest of Ghulam Mustafa deceased, who on his way to General hospital, Rawalpindi, succumbed to his injury. The petitioner was earlier declined bail by the learned Additional Sessions Judge, Rawalpindi, on 14-6-1994; hence this petition. Learned counsel for the petitioner contends that there was no premeditation or pre-planning behind the occurrence, as it took place on account of a petty dispute between the deceased and the co-accused of the petitioner, while they alongwith other boys were playing tops that Iftikhar, Tariq Mahmood and Sajid Ali, who were also playing tops, alongwith the deceased and the co-accused have exonerated the petitioner from the alleged offence; that the petitioner was empty-handed 3t the time of occurrence and the role attributed to him was that of catching hold of the deceased, which, according to the learned counsel was not necessitated in the circumstances of the case. Reliance in this respect is placed on Shahid v. The State 1994 (' M R 393 arid Basharat Hussain v The State 197$ S C M R

357. On the other hand, learned Assistant Advocate-General for the State has opposed this petition by submitting that the petitioner had allegedly caught hold of the deceased, while his co-accused had caused a Chhuri blow to him, as such, the petitioner has facilitated his co-accused to commit the murder of the deceased. Learned Assistant Advocate-General has, however, not been able to controvert the contention of the learned counsel for the petitioner that the boys who were playing tops with the deceased and the co-accused of the petitioner, have exonerated the petitioner from the offence. I have considered the submission made by the learned counsel for the petitioner as well as the learned AA.-G. for the State and have perused the record with care. There is no denying the fact that the petitioner was empty handed at the time of occurrence and the only role attributed to him is that of catching hold of the deceased. The question whether the petitioner had facilitated his co-accused to commit the murder of the deceased or that the provisions of section 34, P.P.C. would be attracted against the petitioner would require further inquiry. Prima facie, there are no reasonable grounds to believe that the petitioner is connected with the crime alleged against him. The guilt or innocence of the petitioner, being subject to further inquiry, his case would fall in the purview of subsection (2) of section 497, Cr. P.C. thus, entitling him to the concession of bail. In view of the above discussions and placing reliance on the above said precedents, I, without going deep into the merits of the case, lest it may prejudice the case of either side, allow bail to the petitioner subject to his furnishing bail bonds in the sum of Rs.50,000 with two sureties, each in the like amount to the satisfaction of Assistant Commissioner/Duty Magistrate, Rawalpindi. N.H.Q./K-164/L Bail allowed.