' The petitioner seeks post-arrest bail in case F.I.R. No.64 of 2002 registered under sections 302, 148, 149, P.P.C. At Police Station Madarsa, District Bahawalnagar. Later on section 34, P.P.C. Was added.
2. According to the F.I.R., the allegation against the petitioner is that he along with his co-accused, nominated in the F.I.R., caused injuries to Shamsul Haq, as result of which, he died while he was being taken to the hospital.
3. Post-arrest bail of the petitioner was declined by the Additional Sessions Judge, Bahawalnagar vide his order dated 7-11-2002.
4. The learned counsel for the petitioner contended that out of nominated accused persons, four persons namely Muhammad Akhtar, Muhammad Mohsin, Muhammad Abdullab and Hafeezulalh have been declared innocent. No specific injury, caused to the deceased, has been attributed to the petitioner no any weapon of offence has been recovered from his possession. Further contended that according to the MLR, cause of death is fire-arm injury. Further contended that the Investigating Officer opined that the petitioner was empty-handed at the time and place of occurrence.
5. Grant of bail to the petitioner has been opposed vehemently by the learned counsel for the complainant and State contending that the place of occurrence is very near from the residence of the petitioner and he was identified by the prosecution witnesses and police and challaned him along with his two brothers. Ihtashamul Haq and Mursaleen alias Shafiq who were armed with repeater and gun. They. Further contended that offence is punishable under the prohibitory clause of section 497, Cr.P.C. And the .Petitioner is not entitled for concession of bail.
6. I have heard the arguments of the learned counsel for the parties and perused the record.
7.#TS##According to the F.I.R., there is general allegation against the petitioner that he along with Muhammad Akhtar, Muhammad .Abdullah and Muhammad Mohsin gave beating with sticks and iron bar: In the F.I.R. Specific injuries have been, attributed to Muhammad 'Abdullah, Muhammad Akhtar, Muhanunad Mohsin but no specific overt act/injury has been attributed to the petitioner. No weapon of offence was recovered from his possession. The Investigating Officer has opined, that the petitioner was empty-handed present at the place of occurrence. Vicarious liability of the petitioner is yet to be determined by the trial Court. After declaring four accused persons Muhammad Akhtar, Muhammad Abdullah Muhammad Moshin and Hafeezullah as innocent the police has omitted offence under sections 148, 149, P.P.C. And while submitting the challan added section 34, P.P.C.
8.From the above facts the case of the petitioner is open for further inquiry. In case of Mehmood Akhtar and another v. Haji Nazir Ahmad and .4 others (1995 SCM R 310), the Hon'ble Supreme Court has allowed bail to a person who was alleged to have caught hold of the deceased before he was given injuries by his. Co-accused. The general allegation of causing injury with sticks against the petitioner is riot sufficient to establish his guilt at bail stage. Cause of death of the deceased is fire- arm injury which were attributed to Ihtashamul Haq and Mursaleen alias Shafiq co-accused.
9. For the foregoing reasons and following the dictum laid down in the above-referred case and also in cases of Muhammad Saffar v. The State (2001 YLR 656 Karachi); Allah Dino v. The State <2001 YLR 1073/ Karachi) and Ghulam Nabi and another (2001 YLR 1309 (2) Karachi), this petition is accepted and the petitioner is admitted to bail in the sum of Rs.1,00,000 (One hundred thousand rupees) with two sureties each in the like amount to the satisfaction of the trial Court/Illaqa Magistrate/Duty Magistrate concerned.