This order will dispose of Crl. Misc. No, 1982-B/2009, Crl. Misc. No, 1979-B/2009 and Crl. Misc. No, 1980-B/2009, as all these petitions arise out of case FIR No, 186 dated 22.05.2009 registered under Sections 302/324/337-H(ii)/148/149 PPC at Police Station Saddar Ahmadpur East District Bahawalpur.
2. Briefly, the prosecution story as mentioned in the FIR is that 13 nominated accused including Gul Muhammad, Mumtaz Ahmad and Sajjad Ahmad petitioners alongwith 15/16 others entered into the house of the complainant and Gul Muhammad, Muhammad Nawaz and Haq Nawaz son of Muhammad Ramzan made fire shot upon Iftikhar Ahmad deceased whereas Manzoor Ahmad made fire shot at Muhammad Arshad. It is mentioned in the FIR that Islam, Nazar, Saeed and Shehzad Ahmad made fire shots. at Rafique Ahmad complainant. Regarding the others, it is mentioned that they made indiscriminate firing hitting on the wall, door, window, motorcycle and tractor etc. Iftikhar Ahmad succumbed to the injuries at the spot.
3. At the very outset, learned counsel for the petitioners contends that he does not press the bail petition to the extent of Gul Muhammad and wants to withdraw the same. The bail petition to his extent is dismissed as withdrawn.
Learned counsel for the petitioners namely Haq Nawaz son of Jan Muhammad, Muhammad Ramzan son of Raheem Bakhsh and Riaz Ahmad son of Muhammad Ashiq contends that they are not nominated in the FIR and their case is at par with that of their co-accused namely Rab Nawaz, Maqbool Ahmad and Haji Muhammad Asghar who had already been allowed bail by this Court vide order dated 23.10.2009 in Crl. Misc. No, 1595-B/2009 and that they are entitled for the grant of bail on the principle of rule of consistency.
Learned counsel for the petitioners namely Sajjad Ahmad and Mumtaz Ahmad contends that they were alleged to have armed with pistol and repeater respectively but no role is attributed to them for causing any injury to the deceased or any injured person and during investigation, nothing was recovered from them and that they are behind the bars and their person is no more required by the police for the purpose of investigation.
Learned counsel for Sajjad Ahmad petitioner further argued that he was declared juvenile by the learned trial Court. Lastly, argued that the police concluded that actually, the complainant party made firing and due to their own firing, deceased received the fire shot.
4. On the other hand, learned DDPP for the State assisted by the learned counsel for the complainant conceded that the case of Haq Nawaz son of Jan Muhammad, Riaz Ahmad and Muhammad Ramzan is at par with that of their co-accused Rab Nawaz, Maqbool Ahmad and Haji Muhammad Asghar who had already been allowed bail by this Court vide order dated 23.10.2009 in Crl.Misc. No, 1595-B/2009. However, learned counsel for the complainant opposed the bail application of Sajjad Ahmad and Mumtaz Ahmad petitioners that they are vicariously liable for the act of their co-accused as they were present at the spot while armed with fire-arm weapons although they had not caused any injury to the deceased and the injured PW.
5. Heard. Record perused.
6. Rule of consistency is always taken into consideration by the Courts since long because a person cannot be denied for the grant of bail whose case is at par of an accused who had already been granted bail.
As the Courts have to give equal treatment to the accused person having one and the same role in the same case even according to the injunction of Islam and the Constitution of Islamic Republic of Pakistan, 1973, equality between a person is to be maintained and Courts are always guardian for the right of the people. Reliance can be placed upon the cases of Muhammad Fazal alias Bodi vs. The State (1979 SCMR 09), Khadim Hussain us. The State (1983 SCMR 124), Manzoor Ahmad and others vs. The State (PLJ 1999 Cr.C. (Lahore) 570) and Muhammad Daud and another us. The State and another (2008 SCM R 173).
The case of petitioners namely Haq Nawaz, Riaz Ahmad and Muhammad Ramzan is at par with that of their co-accused Rab Nawaz, Maqbool Ahmad and Haji Muhammad Asghar, who had already been allowed bail by this Court mentioned above. Even otherwise the learned DDPP for the State and learned counsel for the complainant could not distinguish the role of these petitioners from the role of their co-accused namely Rab Nawaz, Maqbool Ahmad and Haji Muhammad Asghar.
From record, it revealed that these petitioners i,e, Haq Nawaz, Riaz Ahmad and Muhammad Ramzan are not named in the FIR and they were implicated subsequently through supplementary statement. The Apex Court of Country in reported case Falak Sher alias Sheru vs. The State (1995 SCM R 1350) observed that "First information report and subsequent statement made by first informant are two different things because FIR is the document which is entered into book maintained at the police station at the complaint of informant and bring the law into motion whereby police start investigation of the case under Section 156 Cr.P.C. Any statement or further statement of the first informant recorded during investigation by the police would neither be equated with the FIR nor read as part of it." Subsequent statement of the complainant involving the accused in the case would be deemed to be a false improvement which makes the case of the petitioners namely Haq Nawaz, Riaz Ahmad and Muhammad Ramzan to be of further inquiry.
Hence, Haq Nawaz, Riaz Ahmad and Muhammad Ramzan petitioners are entitled for the concession' of bail on the principle of consistency and also on the ground that their case became of further inquiry as mentioned above.
So for as petitioners namely Sajjad Ahmad and Mumtaz Ahmad are concerned, although they were alleged to be armed with fire-arm weapons and joint ineffective firing is attributed to them but they had not caused any injury to the deceased or the injured PW.
In the case of Mumtaz..2 Hussain and 5 others vs. The State (1996 SCM R 1125), Hon'ble Supreme Court of Pakistan observed that "accused despite being allegedly armed with deadly weapons like rifle, gun and hatchet had only caused simple blunt injuries to some of the prosecution witnesses using the wrong side of their weapons--Question whether the accused in such circumstances shared common intention with co-accused who had caused death of the deceased needed further inquiry--Petition for leave to appeal was converted into appeal in circumstances and accused were admitted to bail accordingly." In the case of Faraz Akram vs. The State (1999 SCM R 1360), it was observed that no overt act was allegedly ascribed to the accused except of ineffective firing which also stood disproved because no empty was recovered from the spot--Fatal shot was attributed to co-accused and the question of vicarious liability 'of accused could be determined at the trial". From the above cited judgments, it is crystal clear that vicarious liability could only be adjudged during the trial after recording the evidence. At this stage, the case of the petitioners had become that of further inquiry due to the above mentioned reasons and guidance from the judgments.
7. Resultantly, bail petition to the extent of Gul Muhammad petitioner is dismissed as withdrawn and all the bail petitions to the extent of other accused namely Mumtaz Ahmad, Sajjad Ahmad, Haq Nawaz, Riaz Ahmad and Muhammad Ramzan are allowed and they are admitted to bail subject to their furnishing bail bonds in the sum of Rs, 1,00,000/- (Rs, One lac only) each with one surety each in the like amount to the satisfaction of learned trial Court.
Any observation made by this Court will not prejudice the case of either party during the trial.