'CH. IFTIKHAR HUSSAIN, J.---Petitioner Zaheer Ahmad through the instant petition has sought for post arrest bail in case F.I.R. No,222 registered under section 302 read with 34 P.P.C. With Police Station Kasekey, District Hafizabad on 23-9-2008.
2. Briefly the prosecution case as per the F.I.R. Is that on 23-9-2008, at about 7 p.m., Saddi Ahmad armed with Chhuri, Zaheer Ahmad empty handed, Irfan empty handed and Shahid with .30 bore pistol, in furtherance of their common intention, had committed the Qatl-e-amd of deceased Irntiaz Ahmad, the brother of complainant Muhammad Nawaz. Shahid had done aerial firing with his pistol asking the onlookers not to come near them, otherwise, they would also be dealt with in that way.
'The motive behind the occurrence is that about three days prior to the same, an altercation had taken place between Saddi Ahmad and deceased Imtiaz Ahmad but the matter was hushed up with the intervention of respectables of the village. Saddi Ahmad on grudge over the same along with his companions had done Imtiaz Ahmad to death by inflicting Chhuri blow on the left side of his chest.
3. It has been argued on his behalf that he has falsely been roped in; that mere Lalkara has been ascribed to him; that the story of the complainant as contained in the F.I.R. Has been found to be totally false in the investigation; that Irfan and Shahid during the same have been found to be not present at the spot at the time of occurrence; that Shahid is his real brother; that in fact the deceased was carrying on with his sister Razia Bibi and on the relevant day, he was passing in front of his (deceased) house and there he and one Jehangir caught him and gave him beating and they were taking him to his Dera and his younger brother Saddi Ahmad aged about 12/13 years, at that time was cutting fruit with a small Chhuri and he on hearing alarm rushed to that place and tried to rescue him and when the deceased and his said companion Jehangir also beat him, he thereupon inflicted Churri blow to him (deceased) and it was not at all intentional and rather on the spur of the moment; that Shahid has been found to be innocent in the investigation in this case; that due to such position, the whole prosecution story stands falsified as their this plea has found to be true during the investigation; that he did not raise any Lalkara; that he in no way can be saddled with any intention or overt act qua the commission of the Qatle-amd of deceased; that so far his trial has not commenced; the he is behind the bars for the last about one year; and that in such circumstances, he deserves to be released on bail. In support of his bail plea, reliance has been placed on the case Abdul Razzaq v. The State 2000 PCr.LJ 1868 Lah., Rajib Ali v. The State 2005 YLR 3243 Kar. And Sabir Hussain alias Pehlwan v. The State 2007 PCr.LJ 1159 Lah.
4. On the other hand, the learned Dy. P.G. Assisted by learned counsel for the complainant has opposed the petition on the ground that he is named in the F.I.R.; that the F.I.R. Was lodged promptly and so there could not be any question of deliberation or consultation on the part of the complainant or his (petitioner) false implication in the case, that he has been ascribed the role of commanding Lalkara; that the offence falls within the prohibitory clause of section 497(1) Cr.PC and that his trial is likely to commence in near future.
5. I have carefully considered the submissions made on behalf of the parties and perused the record.
6. The fact remains that as per the own showing of the complainant in the F.I.R., he (petitioner) was empty handed at the relevant time. He has simply been ascribed Lalkara in the commission of the alleged crime and no role except than that. The learned DPG has affirmed that his brother Irfan and co-accused Shahid have been found to be innocent in this case for being not present at the spot at the relevant time.
7. It may be interesting to note here that according to the own story of the complainant in the F.I.R., they both were present at the spot and had caught the deceased from his arms. The above position shows that the major portion of the story of the F.I.R. As regards their role stands negated by opinion of the Investigating Officer. Although this itself is not sufficient to take the whole prosecution story to be false but this significant aspect recoils heavily on the story of the prosecution. I would avoid to make any further comment on this aspect of the matter as it is hardly required here at this stage and if that is done, there is likelihood of suffering someone in his case at trial. However, suffice it would be to say here that the finding of the police regarding their non- presence at the spot at the relevant time, heavily suggests that the entire prosecution story is to be viewed with caution and is not above suspicion. This at the same time also leaves room to entertain doubt qua the involvement of the petitioner as well in the case. It is every body's case before me and. Also found to be so during the investigation that the deceased was carrying on with his (petitioner) sister namely Razia Bibi and he often used to tease them over the same. This also ex facie shows that the deceased was not Masoom-ud-Dam in the matter for having illicit liaison with his sister.
8. It is needless to mention here that in view of his role assigned in the F.I.R., the question of his vicarious liability, if any, would be determined at trial and not at this stage. So, all these facts apparent from the F.I.R. Itself and the finding in certain manners in the investigation, definitely leaves room for further inquiry into his guilt. His case, so, is covered under subsection (2) of section 497 Cr.PC.
9. He statedly is behind the bars for the last about one year and his trial as yet has not commenced. He, therefore, is entitled to the relief prayed for. In reaching to this conclusion, I have relied upon the case of Abdul Razzaq v. The State 2000 PCr.LJ 1868 Lah., Rajib Ali v. The State 2005 YLR 3243 Kar. And Sabir Hussain alias Pehlwan v. The State 2007 PCr.LJ 1159 Lah.
10. In these circumstances, I find that the case for his enlargement on bail has been made out. I, therefore, accept this petition and admit him to bail subject to his furnishing bail bonds to the sum of Rs,100,000 (rupees one lac only) with one surety in the like amount to the satisfaction of the learned trial Court.
11. However, I may observe here 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 on anybody's case at trial.