2005 PLP 130 (YLR)

Zahid Abbas and Shah Nawaz petitioners seek their post-arrest bail in case F.I.R. No.24 of 2004, dated 25-1-2004, registered at Police Station Rajana, District Toba Tek Singh for offences under sections 302/148/149, P.P.C.

2. The case of the prosecution as unfolded in the F.I.R. registered at the instance of Muhammad Akram son of Murtaza Khan was that he was resident of Chak No.194/GB; on 25-1-2004 at about 2-30 p.m., his brother Kamal Khan was returning home on a tractor after ploughing his fields; his father Ghulam Murtaza, and servant Abbas son of Chiragh Khan, who were riding a motorcycle, were coming ahead of said Kamal Khan; when Kamal Khan was at some distance from the village, Farhat Abbas son of Muhammad Zaman, lavaid Ahmad son of Abdul Razzaq armed with rifles, riding 125/CC motorcycle, Khalid Khan son of Muhammad Zaman armed with .12 bore double barrel gun, with an unknown person, on another motorcycle, Zahid Abbas son of Ishaq Khan, armed with .12 bore gun, Shah Nawaz son of Muhammad Nawaz, armed with rifle .7 MM came and encircled his brother; Farhat Abbas asked Kamal Khan to stop, but the latter did not stop; on hearing the noise they turned round and saw that Farhat Abbas had opened fire at Kamal Khan; the first fire made by ham hit Kamal Khan on his left shin, as a result of which his grip on the tractor was loosened and tractor came to a halt; during this while Farhat Abbas again fired hitting on the back of Kamal Khan; witnessing the occurrence, they beseeched the accused persons, whereupon Farhat Abbas and others raised Lalkara that Kamal Khan had been taught a lesson for ploughing the disputed land; they escaped towards the village; Kamal Khan was removed to the Civil Hospital, Rajana in an injured condition. However, he succumbed to his injuries at the main gate of the hospital; Farhat Abbas and others had murdered his brother after due deliberation. The motive according to the complainant was that his mother Mst. Surraya Bibi, who was a paternal aunt of Farhat Abbas, had got her share of land, which was under their possession and it was the said land after ploughing which Kamal Khan was returning.

3. Plea of the petitioners for post arrest bail had been turned down by the learned Additional Sessions Judge, Toba Tek Singh vide his order dated 28-6-2004. Hence, the instant petition.

4. The learned counsel for the petitioners in support of their plea for bail argued that the only role ascribed to them was that while armed with fire-arms and riding a tractor they had encircled the deceased; that apart from the aforesaid role, no overt act has been attributed to them; that although according to the F.I.R. they were armed with .12 bore gun and. a Title, respectively, yet, not only did they make, use of their weapons but also did not raise even the proverbial Lalkara; that the allegation of encircling the deceased is belied by the prosecution story itself, in that according to the complainant himself when Kamal Khan had been motioned to stop, he went ahead and did not stop, which fact according to the learned counsel was sufficient to demolish the story of encirclement. He argued that in the given circumstances of the case insofar as vicarious liability of the petitioners was concerned, the same needed to be thrashed out at the time of trial. In support of his plea for bail, he relied on "Yaroo v. The State" 2004 SCMR 864; Tariq Zia v. The State 2003 SCMR 958; Qalib Abbas v. The State 2000 PCr.LJ 464 and "Muhammad Sadiq and another v. The State" 1996 SCMR 1654.

5. In the case of Yaroo v. The State, supra, bail was granted to the petitioner against whom there was no attribution of any injury to the deceased. In the case of "Tariq Zia v. The State" bail was granted to the petitioner who was empty handed and apart from raising a Lalkara had not played any active role in the commission of the offence. In Qalib Abbas v. The State supra bail was granted to the petitioner by a Division Bench of this Court, as no overt act had been attributed to him except the ineffective firing made by him with a Kalashnikov. Similarly in the case of "Muhammad Sadiq and another v. The State" petitioners Muhammad Sadiq and Islam-ul-Haq had been granted bail by the Honourable Supreme Court as it was held that although they were armed with fire arms yet they did not cause any injury to the complainant party. In this case too, there was allegation against the petitioners that they had raised Lalkaras.

6. On the other hand, the learned counsel for the complainant opposed the grant of bail to the petitioners and maintained that the petitioners have been found guilty in all the investigations; that the mere presence of the accused at the spot was sufficient overt act in the given scenario, moreso when they had attempted to encircle the deceased; that in view of the opinion of guilt recorded against them by the Investigating Officers there were reasonable grounds to believe that the petitioners had committed an offence entailing capital punishment. He also argued that the principal accused, namely, Farhat Abbas was still at large and that the challan having been submitted the trial is likely to commence shortly. In support of his contentions, he relied upon Muhammad Raza alias Gulai v. The State 1997 SCMR 1420; "Munawar v. The State" 1981 SCMR 1092; Muhammad Shafiq v. Muhammad Hanif and another 1970 SCMR 143; and Chiragh Din and others v. The State PLD 1967 SC 340.

7. In the case of Muhammad Raza alias Gulai v. The State supra which was a criminal appeal it was held that promptitude in lodging the F.I.R. would go a long way to prove presence of complainant and witness on spot at time of occurrence. In Munawar's case the learned apex Court repelled the contention that a person who having caused injuries to deceased cannot be burdened with constructive liability at the time of considering question of bail. In the case of Muhammad Shafiq v. Muhammad Hanif and another which was a matter relating to cancellation of bail, the Honourable Supreme Court held that while considering question whether reasonable grounds existed for believing accused guilty, Court merely has to look at material placed before investigating agency and be prima facie satisfied about guilt of accused. In the case of Chiragh Din and others v. The State, it was held that there could be circumstances in which mere presence at the scene of crime is a sufficient overt act to support a conviction. At the same time it was held in the said precedent that it cannot be said that a Lalkara is never to be regarded as a sufficient overt act, if proved, to establish abetment. Their Lordships held that such a question must be decided by the trial Court on an appreciation of all the facts including the degree of interest in the crime possessed by the person who shouted a Lalkara and that part he played in the background of the affair.

8. The learned counsel for the State opposed this petition by adopting arguments of the learned counsel for the complainant.

9. I have heard the learned counsel for the parties at considerable length. It is not denied that the petitioners, who were allegedly armed with fire-arms, did not use their weapons at all. Even the proverbial Lalkara is not attributed to them. According to the F.I.R. itself, the deceased undeterred by the gesture of Farhat Abbas to stop continued his course prima facie casts some doubt on the allegation of encirclement. In this situation keeping in view the role attributed to the petitioners, the possibility that the net was thrown wide open by the complainant to involve as many people of the accused party as possible cannot be brushed aside right ,away. The precedents cited by the learned counsel for the petitioners advance his case for grant of bail. Whereas the precedents cited by the learned counsel for the complainant although no doubt lay down certain principles and guidelines to be considered while deciding bail petition are in my opinion not helpful to the complainant as the facts and circumstances of the case in hand are entirely different. In the peculiar facts and circumstances of the case, I am of the considered view that the case of the petitioners is one of further inquiry within the meanings of subsection (2) of section 497, Cr.P.C.

10. Resultantly, 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 two sureties each in the like amount to the satisfaction of the learned trial Court. H.B.T./Z-53/L Bail granted