Through this petition, petitioner seeks post-arrest bail in case F.I.R. No, 23/2010 dated 24.01.2010 registered at Police Station Kot Mubarak, D.G. Khan under Sections 302, 34, 109 P.P.C. at the instance of Abdul Rasheed, Complainant, Respondent No, 2.
2. Briefly allegations against the present petitioner is that on 9.30 p.m. he alongwith Rabnawaz his uncle, Shahnawaz and Allah Bachaya son of Khuda Bukhsh went out from the Baithak of his house.
Complainant's uncle Rabnawaz deceased went towards east for easement, meanwhile, three accused emerged there. They raised Lalkara to his uncle Rabnawaz deceased. They saw/identified the accused Muhammad Asif, Allah Bachaya petitioner and Mujahid Hussain wielded with Kalashnikovs in the torch light. They excelled towards Rabnawaz deceased. Within their view Muhammad Asif, co-accused made fire short upon Rabnawaz deceased with Klashankov which landed upon his right shoulder who fallen down on the ground and the accused petitioners menaced that if they shall excel shall be done to death, since they were empty handed and remained there while the petitioner accused after wavering their respective weapons of offence. managed to fled away from the spot. When they attended Rabnawaz the fire had crossed through from his right shoulder. The blood was gushing out from the injuries and the injured was taken to the hospital and after while he succumbed to the fire arm injuries in the hospital. The rationale behind the occurrence is that 5/6 months back Muhammad Asif accused was injured at the hand of Rabnawaz deceased, the accused in furtherance of their common intention committed the murder of Rabnawaz deceased. Hence, this F.I.R.
3. Petitioner applied for his post-arrest bail before the learned Additional Sessions Judge, D.G. Khan, who dismissed the same vide order dated 20.04.2010.
4. Learned counsel for the petitioner submits that only ineffective firing with Kalashnikov is attributed to the petitioner; fatal injuries caused on the body of the deceased are not attributed to the petitioner; main fatal injury of fire arm is attributed to Muhammad Asif; further contends that petitioner is falsely implicated in this case; alleged recovery of Kalashankov from the petitioner is fake and planted; no motive is attributed to the petitioner; complainant has thrown a wider net by implicating the petitioner in this case; in the investigation, co-accused Mujahid Hussain was found innocent, which makes the story of the FIR doubtful, the same role is attributed to the petitioner as per contents of the FIR as attributed to the co-accused, Mujahid Hussain, therefore, the petitioner is entitled to the concession of post-arrest bail.
5. On the other hand, learned D.D.P.P. with the assistance of learned counsel for the complainant vehemently opposed the grant of bail on the ground that petitioner is nominated in the FIR with specific role; petitioner shared the common intention; offences falls within the prohibitory clause of Section 497 Cr.P.C: Kalashnikov is recovered from the petitioner, therefore, petitioner is not entitled to the concession of bail.
6. I have heard the learned counsel for the parties at length and perused the record.
7. No doubt petitioner's name exists in the FIR. Only ineffective firing from Kalashnikov is attributed to the petitioner. No specific injury caused on the body of deceased is attributed to the petitioner.
Mujahid Hussain is shown present on the spot to whom the similar role is attributed like that of present petitioner. The question of vicarious liability cannot be determined at this belated stage which will be determined after recording the evidence. Co-accused, Mujahid Hussain has not been arrested although role of him is similar to the petitioner. It is observed in case titled Haji Muhammad Nazir versus The State (2008 SCM R 807), Grant of bail does not mean acquittal of accused but only change of custody from Government Agencies to the Sureties, who on B furnishing bonds take responsibility to produce the accused whenever and wherever he is required to be produced.
8. If the petitioner is not allowed bail till conclusion of his trial, ultimately, he is acquitted and prosecution fails to prove its case, there will be no reparation for the period, the petitioner is incarcerated. If prosecution proves its case against the petitioner, he will be convicted. It is held by Hon'ble Supreme Court of Pakistan in case titled as Tariq Bashir vs. The State. Tariq etc. vs. The State (PLD 1995 SC 34).
The ultimate conviction and incarceration of a guilty person can repair the wrong caused by as mistaken relief of interim bail granted to him, but no satisfactory reparation can be offered to an innocent man for his unjustified incarceration at any state of the case, albeit his acquittal in the long run."
9. In the light of above discussion, this petition is accepted and the petitioner is admitted to post- arrest bail subject to his furnishing bail bonds in the sum of Rs, 1,00,000/- with one surety in the like amount to the satisfaction of learned trial Court. However, observations made above are of tentative in nature, will not prejudice the case of either side during the trial.