2018 PLP 1282 (YLR)

ABDUL SAMI KHAN, J.

Through this petition under section 497, Cr.P.C. Sarfraz, Ehsan Ullah and Mohsin Kamal petitioners have sought post-arrest bail in case FIR No. 304/17, dated 01.07.2017, under sections 302, 324, 337-A(i), 337-A(ii), 337-F(i), 337-L(2), 447/511, 337-H(2), 148, 149, P.P.C., Police Station Bhowana, District Chiniot.

2. I have heard the learned counsel for the parties and have gone through the record with their able assistance. This is bail after arrest and only tentative assessment is required at this stage. It has been noticed by this Court that there are certain distinctions between the case of Sarfraz and Ehsan Ullah petitioners and Mohsin Kamal petitioner, therefore, firstly I would like to decide the case to the extent of Sarfraz and Ehsan Ullah petitioners. Although Sarfraz and Ehsan Ullah petitioners are named in FIR yet the fact remains that no injury is attributed to them on the person of Malik Khan deceased and they have been assigned the role of causing injuries on the heads of Mst.Azra Bibi and Mst. Kalsoom Bibi, falling under section 337-A(ii), P.P.C. It is settled law that the questions in respect of vicarious liability of Sarfraz and Ehsan Ullah petitioners as well as sharing of common intention by them with their co-accused for committing murder of Malik Khan deceased shall be determined by learned trial court after recording evidence. Reliance can be placed on the case of "Mumtaz Hussain v. The State" (1996 SCMR 1125). Admittedly Sarfraz and Ehsan Ullah petitioners are previous non-convict; investigation of the case is complete and they are no more required for further investigation. They are behind the bars since 01.07.2016, that too without any fruitful progress in conclusion of their trial, therefore, their further incarceration in jail would not serve any useful purpose as nobody can be kept in jail for indefinite period.

3. For what has been discussed above, the case of Sarfraz and Ehsan Ullah petitioners has become one of further inquiry covered by subsection (2) of section 497, Cr.P.C. Hence, this petition is allowed to the extent of Sarfraz and Ehsan Ullah petitioners and they are granted bail after arrest on the ground of further inquiry subject to furnishing bail bonds in the sum of Rs.200,000/- (Rupees two hundred thousand only) each with two sureties each in the like amount to the satisfaction of the learned trial court.

4. Adverting to the case of Mohsin Kamal petitioner, it has been noticed by this Court that he is named in FIR with specific allegation of causing hatchet blow on left arm of Malik Khan deceased. The role assigned to Mohsin Kamal petitioner in FIR is borne out from the postmortem report of the deceased. There is sufficient incriminating material against the petitioner on the file of this case as the PWs still stand by their statements recorded under section 161, Cr.P.C. which prima facie connect him with this case. The offences with which he has been charged fall under the prohibitory clause of section 497 Cr.P.C. Challan has already been submitted in the learned trial court, wherein the trial of the petitioner has commenced.

5. For what has been discussed above, this petition to the extent of Mohsin Kamal petitioner does not bear any force and substance and to his extent, the same is hereby dismissed.

6. Before parting with this order, it is made clear that the observations made above are purely tentative in nature and are strictly confined to the decision of these bail petitions only. MQ/S-15/L Order accordingly.