' This order will dispose of two connected bail petitions bearing Crl. Misc. No,6519/B of 2004 (Muhammad Latif alias Mithu v. The State) and Crl. Misc. No,7175/B of 2004 (Maqbool Arshad alias Sajjad v. The State), as they arise out of the same F.I.R.
2. The facts of the case have already been given in detail in my order, dated 20-7-2004, passed in Crl. Misc. No,4205/B of 2004, while granting bail, to the co-accused, namely, Khursheed Alam, so the same need not be reiterated here.
3. The learned counsel appearing on behalf of Muhammad Latif alias Mithu petitioner argued that no specific injury had been attributed to him; that it was only in the supplementary statement of the complainant that he was alleged to have caused a fire-arm injury to Yasir Naveed, wherein it was stated that he had caused a fire-arm injury with his repeater on the backside of the right shoulder of Yasir Naveed; that no injury had been caused by him to the deceased; that he was in no way connected with the motive part of the story and that since Khursheed Alam co-accused had been allowed bail by this Court, therefore, on the principle of consistency he was also entitled to the said concession. He finally argued that no reliance could be placed on the supplementary statement of the complainant. He relied on Zulfiqar Ali v. The State 1996 M LD 1457, wherein it has been held that although opinion of the police was not binding on Courts, but being adverse to the prosecution create doubt about veracity of prosecution case. He also cited Manzoor Ahmad and others v. State PLJ 1999 Cr.C. (Lahore) 570 (D.B.), wherein a Division Bench of this Court keeping in view the principle of consistency, granted bail to the accused persons as it was found that their case was at par with that of the co-accused, who had been allowed bail. In the case of Muhammad Saleem v. The State 2003 M LD 145 cited by the learned counsel, Peshawar High Court granted bail to the accused in a case under section 302/34, P.P.C. While pressing into service the principle of the benefit of doubt holding that whenever there was doubt regarding participation of the accused in the crime or the truth or probability of the prosecution story, bail should be allowed.
In case of Nisar Ahmad v. The State 2004 M LD 741, bail was allowed to the accused as it was observed that his case was at par with the rest of the six co-accused, who had since been released on bail. Finally he quoted Yaroo v. The State 2004 SCM R 864, in which the Honourable apex Court granted bail to the accused, as allegations against him had been general in nature and no injury to the deceased had been attributed to him.
4. The learned counsel for Maqbool Arshad alias Sajjad petitioner argued that even according to the prosecution's own version, the petitioner was empty-handed; that there is no allegation that he had caused any injury to the deceased or to any of the P.Ws.; that the alleged recovery of pump action gun from him is absolutely bogus as admittedly the said gun belongs to Khursheed Alam co-accused, for which the latter held a valid licence; that the recovery of gun allegedly effected from the house of Khursheed Alam strengthens his claim that the gun belonged to Khursheed Alam; that the complainant as also the other vital P.Ws., namely, Basit Naveed and Yasir Naveed have not said a word about any overt act committed by the petitioner; that his name has been placed in column No,3 with ulterior motives. He finally argued that the vicarious liability of the petitioner is to be determined at the time of trial.
5. Conversely, the learned counsel for the complainant argued that both the petitioners have been duly nominated in the F.I.R., who had allegedly been armed with pistols; that certain dishonest concessions had been given to the accused persons in the investigation, which he termed as totally biased and partial; that Naveed Alam deceased had filed Writ Petition No,937 of 2004 before his murder, wherein he had expressed his fear that he would be done to death by the accused party; that the S.H.O., who had conducted the investigation was closely related to Khursheed Alam accused, since released on bail; that both the petitioners have been declared guilty by the Investigating Officers. The learned counsel relying on Rana Muhammad Safdar v. Gulzar Ali alias Papoo and another 1999 PCr.LJ 1, contended that vicarious liability can be looked into at bail stage, it from the F.I.R. The accused appeared to have acted in pre-concert or shared the community of intention with his co-accused.
6. The learned counsel appearing on behalf of the State in both the petitions while adopting the arguments addressed by the learned counsel for the complainant opposed the grant of bail to the petitioners.
7. I have considered the arguments advanced by the learned counsel for the parties and have also gone through the record brought by Sultan Ali S.-I.
8. Insofar as the case Muhammad Latif alias Mithu petitioner is concerned, the complainant made a supplementary statement on the same day that the F.I.R. Had been lodged i,e, 1-1-2004, whereby she had stated that Muhammad Latif alias Mithu caused fire shot injury to Yasir Naveed on the backside of his right shoulder, which injury has duly been noted in the post-mortem examination report. Making any comment on the wroth of the said supplementary statement at this stage especially when the trial has already commenced will not be desirable, as the same would amount to traversing the realm of deeper appreciation of the material available on the record. The principle of consistency is also not applicable to the case of Muhammad Latif alias Mithu, inasmuch as Khursheed Alam's case was entirely different, in that in three successive investigations, he had been held to be innocent. The mere fact that no injury has been ascribed to Muhammad Latif alias Mithu petitioner to the deceased does not advance his plea for bail, inasmuch as he has also been charged under section 324, P.P.C. For causing serious injury to Yasir Naveed. Apart from that, the manner in which he is stated to have conducted himself, he can prima facie be burdened with vicarious liability, which of course will finally be determined by the learned trial Court. By no stretch of the argument, can the case of Muhammad Latif alias Mithu be termed as being at par or on a better footing than the case of Khursheed. Alam co-accused as claimed by his learned counsel. The precedents cases relied upon by the learned counsel for the petitioner A proceed entirely on different facts and do not advance the plea of the petitioner.
9. Resultantly, I see no merit in the bail petition of Muhammad Latif alias Mithu (Criminal Miscellaneous No,6519/B of 2004), which is accordingly dismissed.
10. As far as the case of Maqbool Arshad alias Sajjad petitioner is concerned, it has straight away been noticed that according to the F.I.R. As also according to the statements of Basit Naveed and Yasir Naveed P. Ws. He had been shown to be empty-handed. It has also not been denied that the alleged recovery of pump action gun, which had been a licensed weapon and belonged to Khursheed Alam, had been effected from the premises owned by Khursheed Alam. There is no allegation that he caused any injury either to the deceased or to any of the witnesses. His culpability including vicarious liability in the given facts and circumstances calls for further probe within the meanings of subsection (2) of section 497, Cr.P.C.
11. Accordingly, I accept the bail petition of Maqbool Arshad alias Sajjad petitioner (Criminal Miscellaneous No,7175/B of 2004) and direct that he be released from custody subject to his furnishing bail bonds in the sum of Rs,50,000 (Rupees fifty thousand) with two sureties each in the like amount to the satisfaction of the learned trial Court.