CH. IFTIKHAR HUSSAIN, J. - Petitioner Iqbal alias Bali through the instant petition has sought for post- arrest bail in case F.I.R. No. 100 registered under Sections 302, 427, 148, 149, 109, P.P.C. With Police Station Bara Ghar, Nankana Sahib on 23.4.2005.
2. The facts of the case stand mentioned on the similar petition of his co-accused Khan Muhammad (Criminal Miscellaneous No. 6199-B/2005). I therefore, avoid to. Repeat the same.
3. It has been argued on his behalf that he has been falsely roped in being the relative of principal accused Mumtaz alias Mumtaz, whereas he has nothing to do with the alleged offence: that the role ascribed to him is merely of ineffective firing and similar was the position in the case of said co-accused Khan Muhammad, who was allowed bail by this Court and so his case being at par with him is also entitled to the same relief; that he is a labourer by profession and has been earning livelihood for his family comprising 4/5 members doing labour in the adjoining villages and in such circumstances, there is no question of his abscondence and this has erroneously been shown so in the police record; that the challan has been submitted in the Court, and his trial commenced but so far only the charge stands framed against him and no prosecution witness examined; that he is behind the bars for the last about 14 months and so is suffering the agony of detention due to which his family is facing hardships; and that he is a previous non-record-holder in any manner.
4. On the other hand learned Deputy Prosecutor General has opposed the petition on the ground that he is named in the F.I.R; that he cannot deny his vicarious liability for the act of his associates in the manner; that he has remained an absconder; and that the challan stands submitted in Court and his trial commenced.
5. I have carefully gone through the submission made on behalf of both sides. Record perused.
6. Although he has been nominated in the F.I.R. But the fact remains that mere ineffective firing is ascribed to him. However, he has been ascribed no injury to the deceased. In such circumstances, the question of his vicarious liability is to be determined at trial. And, if seen from that angle, his case is one of further inquiry into his guilt and so is covered under sub-section (2) of Section 497, Cr.P.C.
7. It has been argued by the prosecution side that he has remained an absconder. Firstly, it has been denied to be so by his side with the contention that he is a labourer and has been earning livelihood in the adjoining villages and he has erroneously been shown as to be so in the police record. Irrespective of the fact that whether he had remained an absconder or not, it is certain that his case has been found to be one of further inquiry into his guilt as observed above. This when may be the position, then alleged abscondence of an accused is hardly a hurdle in the way of such relief to him.
8. He statedly is behind the bars for the last about 14 months. It is so admitted by the prosecution side that his arrest was effected on 7.7.2008. His case is also at par with that of his co-accused Khan Muhammad, who stands admitted to the concession of bail by this Court.
9. His trial statedly has commenced. Although normal practice is that when trial commences, then such relief is not to be extended to an accused but in view of the dictum laid down in the case of Muhammad Ismaeel v. Muhammad Rafique and another (PLD 1989 SC 585), wherein it has been held by their Lordships in the august Supreme Court of Pakistan that it is not always necessary that when trial commences bail cannot be granted to an accused, while it can be so, when it may be found that he is entitled to such relief, in the given circumstances of a case as it is a matter of right whereas later one relates to practice and the right is to take precedence over practice. I am, therefore, respectfully relying upon the esteemed view of the apex Court persuaded to extend him the relief despite commencement of his trial.
10. In this view of the matter I accept this petition and admit him to bail in the sum of Rs. 2,00,000/- with two sureties each in the like amount to the satisfaction of the learned Trial Court.