The petitioner seeks post arrest bail in case FIR No, 483/2005 dated 25.8.2005 offence under Sections 302/109/148/149 PPC at Police Station Manga Mandi, Lahore.
2. Briefly the allegations as per FIR by the complainant Malik Riaz Mehmood are that on 25.8.2005 his first cousin Rana Bakhtiar Ahmad was contesting for the seat of Nazim of U.C. No,
122. On the same day at 4.45 p.m. the complainant along with his son Zaheer Mehmood (deceased), Riaz.
Mehmood Gul were sitting in front of High School Maraka. Suddenly accused Faiz Rasool, Abid Rasool and Javed Rasool sons of Ghulam Rasool armed with rifle 222 each, accused Muhammad Sarwar armed with rifle 222 along with 5 unknown persons came on the spot. Abid Rasool raised lalkara, upon which all the accused fired with their respective fire-arm weapons, in consequence whereof Zaheer Mehmood son of the complainant was badly injured and then the aforesaid accused while firing indiscriminately ran away. It was further mentioned in the FIR that due to the firing of accused Altaf son of Niaz caste Gujjar was also injured and died due to the injuries sustained. When the complainant was taking his son to Jinnah Hospital for treatment, he also succumbed to the injuries on the way. The occurrence was seen by P.Ws Malik Shabbir Ahmad and Malik Saleem Akhtar. Accused Muhammad Ramzan and Rashid Ahmad were nominated as accused of abetment.
3. Learned counsel for the petitioner contends that the petitioner is not nominated in the FIR; that no specific role of causing injuries is attributed to the petitioner even in supplementary statement and in fact the complainant party of the present FIR attacked and committed the murder of one Altaf son of Niaz Gujjar as he was the supporter of one Faiz Rasool who was also a candidate of Naib Nazim and brother of three accused nominated in the FIR. He further contends that the true facts were concealed by the complainant of the present FIR and one Mushtaq Ahmad was also injured but he did not appear during the investigation.
4. Learned DPG assisted by the learned counsel for the complainant has opposed this bail petition and contends that the petitioner was well nominated in the supplementary statement of Malik Riaz Mehmood complainant on the same day i,e, 25.8.2005 and in that statement the petitioner was attributed role of firing along with his co-accused. He remained absconder for about two years.
Recovery of weapon of offence was effected from him on 7.7.2007. Total 10 empties were recovered from the place of occurrence. Charge has been framed and at this stage, petitioner is not entitled to the grant of bail.
5. After hearing the learned counsel for the parties and going through the record I have found that the petitioner is not nominated in the FIR, although he was known to the complainant. The complainant stated in supplementary statement that as he was perturbed at the time of lodging of FIR due to death of his son so he could not mention the name of the petitioner therein but no specific injury was attributed to him. There are four nominated accused along with five unknown persons in the FIR and there are only two entry wounds on the person of the deceased and similarly FIR No, 544/05 dated 21.9.2005 was lodged on the statement of one Ilam Din a paternal uncle of Altaf deceased wherein the complainant party of present FIR including the complainant himself have been nominated as accused and in that case three persons namely Nazir. Munir and Noor Wali were challaned out of total accused of cross case but the complainant Ham Din filed a private complaint whereby complaint and State case have been consolidated. Similarly the challan in the present case FIR No, 483/05 has also been submitted wherein the charge according to the learned counsel for the complainant, has been framed. The absconcion per se cannot be made a ground for refusal of bail or cannot be considered as a proof of guilt of an accused if the case of bail is made out.
6. In view of the peculiar facts and circumstances of the case, wherein there are two counter versions and counter claims of two parties for one murder from each side, the case of the petitioner who is not nominated in the FIR, falls within the purview of sub-section(2) of Section 497 Cr.P.C.
7. This petition is allowed and the petitioner is admitted to bail subject to his furnishing bail bond in the sum of Rs, 3,00,000/-(Rupees Three Lac only) with one surety in the like amount to the satisfaction of the learned trial Court.