2007 MLD 436 (PLP)

HASNAT AHMAD KHAN, J.

The petitioner seeks bail after arrest in case F.I.R. No.53, dated 24-5-2004 registered under sections 396/302, P.P.C. at Police Station Budhla Santt, District Multan.

2. The prosecution story briefly narrated in the F.I.R. is that on the night between 23/24-5-2004 the complainant and his sons were sleeping in their house. At 2.00 a.m. 7/8 persons who were armed with fire-arm weapons reached there in a vehicle described as "Daala" Hiace. The complainant along with other family members was made to sit in the courtyard. Some of the accused broke open the door of the room and looted rifle, case and gold ornaments etc. On the resistance of the complainant, one of the culprits gave an injury on his head with the "butt" of the rifle, while one of his colleagues started a Fiat Tractor which was parked in the courtyard and on the resistance of his son namely Mazhar Hussain one of the culprits fired with rifle hitting Mazhar Hussain deceased. His other son namely Muhammad Yaseen was also given an injury with the butt of the rifle Mazhar Hussain died at the spot.

3. The petitioner applied for bail after arrest, which was refused by the learned Addl. Sessions Judge, Multan, vide order, dated 26-9-2006, which has necessitated the filing of the present application.

4. Keeping in view the allegation levelled in the F.I.R. and the petition under section 22-A of Cr.P.C. moved by the complainant in which he stated that real culprits who committed the offence were different persons, this Court thought it appropriate to issue notice to the complainant who is present in the Court but he states that he does not want to engage a counsel.

5. Learned counsel for the petitioner has submitted that he is not named in the F.I.R. that at the instance of the complainant, number of persons were involved in this case as accused, but they were found innocent during the investigation; that the petitioner has been implicated in this case on the basis of statement of co-accused which is of no consequence.

6. Learned counsel for the State has opposed the bail application.

7. I have heard the learned counsel for both the parties and perused the record.

8. At the very outset, it has been noticed that the petitioner was not named in the F.I.R. He has been implicated in this case only on the basis of statement of co-accused namely Haibet Khan which is of no consequence. It is a night time occurrence. No identification parade was held to determine the identity and liability of the petitioner in the present case.

9. It has been further noticed that a "Daala" Hiace was recovered from Tariq Farooq accused on 15-6-2004. The said "Daala" Hiace bearing No.6515-MI had resemblance with the vehicle which was used by the dacoits during the occurrence as one side of the said vehicle the words "Pakistan Medical Hall" had been printed/written, the Daala which was allegedly used in crime was of the same description. Nevertheless, during the investigation, another "Daala" Hiace was allegedly recovered on the pointation of the petitioner from Haveli of Ghulam Haider which was not in the exclusive possession of the petitioner. Credibility and value of said recovery would be determined at the time of trial but for the present suffice it to say that this aspect of case would also be needing further inquiry. 9A. According to the prosecution version, at the time of occurrence the petitioner was simply driving "Daala" Hiace which was used for transport of the petitioner, as such, the question of sharing of vicarious liability by him also requires further inquiry. Reliance in this regard is placed upon "Faraz Akram v. The State" (1999 SCMR 1360) and "Suleman v. The State" (2003 YLR 2534).

10. Above all, I have perused a certified copy of a petition moved under section 22-A, Cr.P.C. by the complainant in which he has claimed that during the occurrence he had identified three culprits namely Zaid, Nadeem and Akhtar accused, but the police were not arresting the real culprits. Perusal of the said application, in which the complainant has tried to set up new case, also makes the case of the petitioner as that of further inquiry.

11. For all the above said reason, the case of the petitioner requires further inquiry under section 497(2), Cr.P.C. and as such, the petitioner is accepted and the petitioner is admitted to bail provided he furnishes bail bond in the sum of Rs.1,00,000 (one lac) with two sureties in the like amount to the satisfaction of the learned trial Court. S.M.B./M-716/L Petition accepted.