' CH. IFTIKHAR HUSSAIN, J.---Petitioner Irfan Ahmad through the instant petition has sought for post- arrest bail in case F. I. R. No, 68 registered under sections 302, 148, 149 P.P.C. With Police Station Narang, District Sheikhupura on 29-1-2004.
2. Briefly the prosecution case as per the F.I.R. Is that on 29-1-2004 at about 12-30 Noon, Javed Iqbal and others, while having fire arms, in prosecution of the common object of the unlawful assembly formed by them, have committed the qatl-eamd of deceased Musharaf Ahmad and attempted the qatl-e-amd of the complainant and others. Bilal Ahmad accused fired with .222 rifle at the deceased hitting on the right lower side of his neck resulting into his death. It was on account of damage caused to his (complainant) crop by the cattle of accused Javed Iqbal and an altercation had taken place 5/6 days prior to the occurrence between Imtiaz his brother and accused Sarfraz and others.
3. It has been contended on his behalf that he has falsely been roped in; that his co-accused have been acquitted by the learned Sessions Judge, Sheikhupura, on 20-10-2007 and the complainant has preferred an appeal against the finding of their such acquittal and the same too has been dismissed by the learned Division Bench of this Court, on 12-3-2009 and so, his case is one of further inquiry into his guilt; and that his mere alleged abscondence cannot come in his way to grant of the relief and in this regard reliance has been placed upon the case of Mumtaz All v. The State (PLD 2007 Karachi 127).
4. Converse to that learned D.P.G. Assisted by the learned counsel for the complainant has opposed the petition on the ground that he is named in the F.I,R. With specific role of firing on the complainant party and so, is vicariously liable for the qatl-e-amd of the deceased as well and the attempt of the qatl-e-amd of the complainant and his companions; that he has remained fugitive from law for quite sometime and so, has lost normal right to bail and in support of these submissions, reliance has been placed upon the case of Khial Gul and another v. The State and another (2002 PCr.LJ Peshawar 1054), Mehtar v. The State and another (2000 PCr.LJ Peshawar 60) and Karim Bus v. The State (2000 SCMR 1405).
5. I have carefully considered the submissions made on behalf of the parties and perused the record.
6. As said earlier that the allegation against the petitioner is that he along with his co-accused has fired on the complainant and others. The same but had not hit any one. The only fire, which has proved fatal in this case, is attributed to Bilal Ahmad co-accused hitting on the right lower side of the neck of the deceased. The question, thus, of his vicarious liability for the same is to be gone into at trial.
7. His co-accused Bilal Ahmad and others had faced the trial in this case and they except Bilal Ahmad were acquitted of the charge by extending them the benefit of doubt. The allegation against the others was as is against him. The learned D.P.G. And the learned counsel for the complainant have admitted it to be so.
8. The complainant has challenged their acquittal before this Court by way of an appeal and a learned Division Bench of this Court on 12-3-2009, has been pleased to dismiss the same. Hence, I have the least hesitation to say here that the finding of acquittal of his co-accused with similar allegation as is against him and the maintenance of such finding by the learned Division Bench has created a circumstance B of doubt qua his involvement or participation in the matter. Hence, I may say here that this position definitely makes his case as one of further inquiry into his guilt.
Hence, the same is covered under subsection (2) of section 497, Cr.P.C.
9. In such circumstances, his alleged abscondence can't come in his way to grant of bail. Reliance in this regard is placed upon the case of Mumtaz Ali v. The State (PLD 2007 Karachi 127). It may also be mentioned here that it has been explained by his side that he did not abscond and in fact had remained in his house during this intervening period and the police did not arrest him taking him to be an innocent person. He, thus, in such circumstances becomes entitled to bail as of right and not mere grace.
10. As regards the case law referred to by the side of the complainant, with all respect to the same, I want to mention here that the same had proceeded on entirely different facts and circumstances than that of his case. Hence, the same is not aptly applicable herein. It may be also said here in this regard it is well settled principle in criminal administration of justice that each D case is to be adjudged in the background of it's own facts and circumstances and the facts of two criminal cases seldom coincide. A precedent will be applicable on a D given case, when it will be on fours to it.
11. Hence, for all such reasons, I have been persuaded to hold that he has made out a case for bail.
12. I, therefore, accept this petition and admit him to bail subject to his furnishing bail bonds in the sum of E Rs,1,00,000 (Rupees one lac only) with one surety in the like amount to the satisfaction of the learned trial Court.
13. However, it is hereby clarified that the above observations are tentative in nature and meant only for the disposal of the matter in hand. These shall have no bearing at all anybody's case at trial. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.