' SAGHEER AHMAD QADRI, J.---Petitioner Ghulam Murtaza alias Taj son of Amir Zaman has moved this petition for the grant of post-arrest bail in case F.I.R. No,26 dated 16-1-2011 registered at Police Station Gujjar Khan, Rawalpindi under sections 302/324/34, P.P.C.
2. The F.I.R. Was lodged by Wadi Hussain son of Mowara Khan, complainant mentioning therein that on 16-1-2011 at 5-10 p.m cattle owned by Ghulam Murtaza alias Taj, present petitioner, entered into their wheat crop field and his younger brother Mushtaq Hussain driven them out due to which hot words were exchanged between Mushtaq Hussain and Ghulam Murtaza, however, the matter was patched up. At 3-30 p.m on the same day when the complainant along with his brother Mushtaq Hussain, nephews Aamir Mushtaq and Aaqib Mushtaq were present in the house they heard somebody raising lalkaras by calling bad names present outside the main gate of their house and when the complainant along with Mushtaq Hussain came out found Amjad son of Abdul Rehman and Ghulam Murtaza alias Taj son of Ameer Zaman both armed with .12 bore guns, Muhammad Safeer son of Abdul Maalik and Muhammad Saqib son of Ghulam Murtaza both aimed with .30 bore pistols present at their house. On seeing the complainant party the accused persons raised lalkaras and said that they would teach lesson for throwing out their cattle from the field and for exchanging hot words on the early part of the day. Thereafter Amjad fired with .12 bore gun hitting complainant's bother Mushtaq Hussain on his face who fell seriously injured. Accused Ghulam Murtaza alias Taj made firing in the air while remaining accused while waving their respective weapons of offence made good their escape from the spot. The occurrence was witnessed by Aamir Mushtaq and Aqib Mushtaq sons of Mushtaq Hussain who on the very next day of the occurrence died in the hospital. Motive for the occurrence as mentioned above was dispute over trespassing the cattle of accused-petitioner Ghulam Murtaza in the wheat crop field owned by the complainant and subsequently exchanging hot words between him and deceased Mushtaq Hussain.
3. Initially case under section 324/34, P.P.C. Was registered which on death of Mushtaq Hussain converted into section 302/34, P.P.C.
4. Learned counsel for the petitioner contends that allegations against the petitioner are false, he has not committed any offence; that the petitioner is aged about 68 years as per Shanakhat Certificate and Saza Slip annexed with the challan; that the only allegation levelled against the petitioner in the F.I.R. Is that of firing in the air; that no overt act is attributed to the petitioner nor he caused any injury to the deceased; that no empty was recovered from the place of occurrence and he has been falsely involved in this case; that no proverbial lalkara is attributed to the petitioner; that co-accused of the petitioner namely Muhammad Saqib and Muhammad Safeer vide Criminal Miscellaneous No,421-B of 2011 were allowed bail. Further contends that case of the petitioner requires further probe falling under section 497(2), Cr.P.C. While relying on 2008 PCr.LJ 1371 `Ghulam Qasim v. The State and another, 1998 SCM R 454 Muhammad v. The State', 1999 PCr.LJ 890 `Shaft Muhammad v. The State', 1996 SCM R 1125 'Mumtaz Hussain and 5 others v. The State', 2006 PCr.LJ 629 Tasawer and another v. The State', 1999 SCM R 1360 Faraz Akram v. The State' and 1996 SCM R 1654 'Muhammad Sadiq and another v. The State' prayed that the petitioner's case is at par with co-accused, he be allowed bail.
5. Conversely, learned D.P.-G. Assisted by the learned counsel for the complainant has vehemently opposed this bail petition on the ground that case of the petitioner is distinguishable than co- accused already allowed bail by this Court vide order dated 10-5-2011 as in case of those accused, they were not attributed any overt act or firing in the air whereas motive is attributed to the present petitioner and at his instigation co-accused caused death of the deceased; that main accused is still at large and the petitioner if released on bail, will further create complications rather the complainant may take the law in his hand and to get avenge his grievance. While relying on 1986 SCM R 1681 Mubarik Shah v. The State' and PLD 1997 SC 347 Waseer Ahmed v. The State prayed that bail petition be dismissed.
6. I have heard the learned counsel for the parties and perused the record.
7. As mentioned above the alleged motive is attributed to the petitioner as according to the F.I.R. In the first part of the day his cattle trespassed into the field owned by the complainant side which were driven out by the complainant's brother Mushtaq Hussain and hot words were exchanged.
Subsequently at the time of alleged main occurrence, petitioner along with his co-accused armed with .12 bore gun reached opposite to the house of the complainant and all of them raised lalkaras for getting revenge of earlier incident. It is specifically mentioned that co-accused of the petitioner Amjad Hussain fired at deceased hitting him on his face who fell seriously ill while the petitioner made aerial firing..
8. Co-accused of the petitioner as already mentioned have been allowed bail by this Court vide order dated 10-5-2011 in Criminal Miscellaneous No, 421-B of 2011. This Court while disposing of the bail application of co-accused in para No,7 observed: "7. Admittedly only one fire shot is attributed that too to the co-accused of the 'petitioners, namely Amjad Hussain. Although it is alleged that both the petitioners were present along with their co- accused armed with fire arm weapons but they did not use the same nor they even made any firing in the air. The petitioners were arrested, had undergone the process of investigation and then sent to judicial lock up and that the application of section 34 P.P.C. About sharing the common intention would be determined at the trial stage after recording the evidence of the prosecution witnesses. At present, prima facie, the case of the petitioners requires further probe falling under section 497 (2) Cr.P.C. As far as the arguments advanced by the learned counsel for the complainant that co-accused of the petitioners is still at large but it is not a ground to withhold any such relief to an accused person if otherwise entitled."
9. If the above mentioned observation is seen, case of the petitioner is almost at par with his co- accused who were allowed bail except that he was alleged motive and firing in the air. Vicarious liability of the petitioner in these circumstances and sharing the common intention with his co- accused only can be seen at trial stage after recording the evidence. In these circumstances, case of the petitioner also requires further probe falling under section 497(2), Cr.P.C. Thus, he is also entitled for the same concession extended in favour of his co-accused. While allowing this petition, it is directed that the petitioner be released subject to his furnishing the bail bonds in the sum of Rs,1,00,00 (Rupees one lac) with two sureties each in the like amount to the satisfaction of the learned trial Court.