' MAZHAR IQBAL SIDHU, J.-Azhar Hussain petitioner after having been sent to jail has sought for post- arrest bail in a case lodged on the complaint of Saifullah vide F.I.R. No,1689 dated 14-10-2010 under sections 302/34, P.P.C. At Police Station Shandara, District Lahore.
2. Nutshell of the prosecution case is that on 14-10-2010 at about 5-00 a.m., the complainant along with his sons Jahangir Ahmad (deceased), Muhammad Kaleem and Nazir Ali son of Barkat Ali after having taken ice from the Ice Factory of Haji Hafeez at a Mazda Dala bearing No,3441/LES when reached Muslim Town Mor to approach GT Road where Tasawwar Hassan accomplice, Azhar Hussain (petitioner) along with an unknown person were found standing there who made onslaught on the complainant party and after leaving Mazda Dala, complainant and his companions started running to nearby street to save themselves but the firing continued, as a result of which Jahangir Ahmad received multiple injuries who fell on the ground whereupon the petitioner along with his accomplice left the place of occurrence while raising Lalkaras. A vehicle of Rescue 1122 came there and Jahangir Ahmad injured was being taken to Mayo Hospital, Lahore but on the way he left the world for internal life. The motive mentioned in the F.I.R. Is that the complainant purchased the above mentioned Dala from Munawwar, father of the petitioner but Tasawwar was putting pressure to return it but the complainant asked him to hand over the sale price to which Tasawwar refused.
3. Learned counsel for the petitioner submits that Anent an unacquainted person, it has been made mentioned that he also made firing at the deceased; during investigation, two more co- accused namely Ali Hassan and Abdul Rehman were involved who both have been granted bail by the learned trial court; petitioner has been falsely involved on account of his relationship with Tasawwar Hassan as both are real brothers, during thorough investigation, petitioner has been found innocent and his name has been placed in column No,2 of the report under section 173, Cr.P.C. Further submitted that placement of name of the petitioner in column No,2 by itself denotes that petitioner has not been recommended for prosecution by the prosecution agency and so far private criminal complaint has not been instituted being averse of aftermath of the investigation.
Further submitted that no specific injury has also been assigned to the petitioner and material available on record prima facie makes out a case for the relief' of bail on the basis of further inquiry as to the guilt of the petitioner.
4. Learned DPP assisted by learned counsel for complainant has vehemently opposed but with veneration submitted that petitioner has been named in F.I.R.; incident was reported to the police within 30 minutes; question of mistaken of identity of the petitioner does not arise in this case as occurrence took place during the day time and the petitioner is real nephew of the complainant.
Further submitted that police opinion is not only irrelevant but also the same is not binding upon the court and the court should also not oscillate to rely upon it in absence of cogent material.
Further submitted that it is inconsequential to appreciate the mentioning of name of an accused either in Column No,2 or Column No,3 in report prepared under section 173 Cr.P.C. But the relevant is that what is the material upon the basis of which a malefactor has been found innocent; contrary to the police opinion, all the eyewitnesses have shown pertinacity to the F.I.R. And their version has been supported by the post mortem examination of the deceased. Learned counsel for complainant further adds that petitioner remained at large for about 65 days and this act of the petitioner definitely demonstrates that he would abscond after the release on bail, therefore, he is not entitled for grant of bail in the circumstances of the case.
5. Learned counsel for both the parties have referred to legal precedents in support of their respective arguments.
6. Arguments heard and record perused.
7. It is an open and secret that the F.I.R. Was lodged without any delay. Indubitably, F.I.R. Throws up that no specific injury has been attributed to the petitioner. It has also been gone unchallenged that petitioner is real brother of Tasawwar Hassan whom the alleged motive is attributed. It goes without saying that innocent persons are entangled' with guilty persons to appease their vengeance. Of course, police opinion has no binding force upon the court but for the disposal of bail application, the same can be looked into and in this case, petitioner has not only been found innocent but his name has, too, been placed in Column No,2 of the report under section 173, Cr.P.C.
It by itself makes the mind of the court persuaded that his prosecution has not been recommended. All the facts and circumstances, prima facie, make out a case of the petitioner to believe that his involvement requires further probe, therefore, on the basis of doctrine of further inquiry, he is allowed bail while accepting the instant petition and is directed to be released on bail provided his furnishing bail bonds in the sum of Rs,2,00,000 (two lacs) with one surety in the like amount to the satisfaction of learned trial court.
8. It is markedly observed that op-cit observations would remain tentative in nature and shall not influence the judicious - mind of the learned trial court while deciding the case finally.