Basharat Ali son of Muhammad Jamil, the petitioner, by filing the instant petition, seeks post-arrest bail in case F.I.R. No, 441, dated 13-122004, registered at Police Station Wahndo, District Gujranwala for offences under Sections 302, 109, 148, 149, P.P.C.
2. The case of the complainant Muhammad Zaman son of Ghulam Muhammad, as it unfolded in the F.I.R. was that he was cultivator and was in possession of agricultural land measuring 138 Kanals, 18 Marlas on the basis of an agreement with one Muhammad Hussain son of Mehr Din; the land was under his cultivation, where he had sown paddy crop; despite agreement to sell in his favour, Muhammad Hussain vendor got mutation of the said land entered in the name .of Naseer Ahmad; on coming to know about that he filed a suit for specific performance, which was under adjudication in a Court of law and he had deposited the entire amount of the agreement to sell in the Court; on 13-12-2004, about 12-30 p.m., he alongwith his companions were busy in harvesting the crop with the help of a harvester, his nephew, Muhammad Yahya son of Zakaullah, resident of Hameedpur Khurd was coming towards him from Baqapur, when Naseer, Khan Muhammad sons of Shah Muhammad, Basharat (petitioner), and five unknown persons, who were carrying fire- arms, were coming for preventing them from harvesting the paddy crop; in the way as soon as they spotted Muhammad Yahya, Naseer Ahmad fired at him with his rifle causing Muhammad Yahya to fall down on receipt of the injury; the rest of the accused fired with their respective weapons and advanced towards him declaring that they would teach them a lesson for harvesting paddy crop; a number of fire shots hit the harvester. According to the complainant, he and his companions saved their lives with great difficulty by running away from the spot and the accused persons fled from the scene raising Lalkaras. According to him, the incident had been witnessed by Muhammad Yousaf and Mukhtar Ahmad P.Ws.
The motive according to the complainant was a dispute about the and. It was also alleged that Muhammad Yahya deceased had been murdered at the instance of and with the connivance of Malik Jameel and Abbas. Resultantly, the instant F.I.R. had been recorded.
3.The petitioner was arrested on 5-5-2005 and is in custody ever since. His plea for post-arrest bail did not find favour with the learned Additional Sessions Judge, Gujranwala, who turned down his application vide order dated 2-7-2005. Hence, the instant petition.
4. After hearing the learned counsel for the parties and examining the record brought by Amanullah, S.-I, it has been observed that initially the investigation was carried out by the local police and the Investigating Officer recorded opinion of innocence qua all the nominated accused in the F.I.R. He was of the opinion that it was one Mazhar alias Majjo Shah, whose fire had hit the deceased and insofar as the petitioner was concerned it was opined that he was available at a distance of four/five acres from the venue of occurrence. It has also been- observed that the arrest of the petitioner had been held in abeyance by the Investigating Officer. Thereafter, the investigation of the case was conducted by Muhammad Aslam Ghauri, Superintendent of Police (Investigation), who too kept the arrest of the " petitioner in abeyance as according to him there was not sufficient material available against the petitioner warranting his arrest. He also vide his Zimni recorded on 24-5-2005, came to the conclusion that the petitioner was present at a distance of four/five acres from the scene of occurrence and that he did not play any role towards killing the deceased. It has further been observed that the deceased, namely, Muhammad Yahya had suffered only one fire-arm injury in the transaction and during the course of postmortem examination two injuries were found on his person, out of which one was entry wound and the other was its exit. This fire-arm injury has admittedly been attributed according to the complainant in the F.I.R., to Naseer Ahmad, who is reportedly in custody. Keeping in view the opinion of the Investigating Officers and the fact that the petitioner had not been attributed any injury to the deceased or any of the witnesses, his vicarious liability needs to be determined at the time of trial.
The argument of the learned counsel that the petitioner was not entitled to the concession of bail because the prosecution case had a special feature its own i,e, that the accused party had launched the assault with a view to dislodging the complainant party from the land where the paddy crop had been sown and that since the presence of the accused person at the spot or in the vicinity thereof is not denied, therefore, the petitioner would not be entitled to the concession of bail, in my view does not hold much weight as this argument pertains to the realm of deeper appreciation of the material available on the record, which cannot be undertaken at this stage. The contention of the learned counsel for the complainant that the investigation had been conducted in a dishonest manner right from day one, in that neither the harvester, which had been hit by bullets during the transaction had been taken into possession not the statements of the drivers of the harvester had been recorded nor any empty had been recovered from the spot, may be true to-some extent, but I am afraid any benefit arising out to the said dishonest investigation or deficient material brought on the record will at this stage have to be resolved not in favour of the prosecution. The reliance of the learned counsel for the petitioner on the cases of Muhammad v.
The State 1998 SCM R 454; Faraz Akram v. The State 1999 SCM R 1360 and Rashid v. The State 2003 PCr.LJ 1390 is quite apt and advances their case for the grant of post-arrest bail. The cumulative effect of the attending facts and circumstances as noted hereinabove is that the case of the petitioner is rendered one of further inquiry within the meanings of sub-section (2) of Section 497, Cr.P.C.
5.Resultantly, this petition is allowed and the petitioner is admitted to bail subject to his furnishing bail bonds in the sum of Rs, 50,000 (Rupees fifty thousand) with one surety in the like amount to