SAGHEER AHMAD QADRI, J. -- By this single order I propose to dispose of Criminal Miscellaneous No. 835-B of 2011 titled 'Muhammad Idrees v. The State, etc. and Criminal Miscellaneous No. 842-B of 2011 titled 'Mushtaq Akhtar Butt alias Kala v. The State etc.' arising of of the F.I.R. No. 188, dated 07.04.2011 registered under Sections 302/324/147/148/449, P.P.C, at Police Station Gunjmandi, Rawalpindi.
2. Brief facts in order to dispose of these petitions are that Muhammad Asif Nazeer Butt son of Nazeer Hussain Butt lodged report with the police of Police Station Gunjmandi, Rawalpindi mentioning the facts that he was a taxi driver and residing in Dhok Ratta, Rawalpindi; that he has two brothers and three sisters out of which younger sister Mst. Saima Nazeer was married with Rizwan Butt son of Latif Butt about 1 1/2 year back however, the spouses had strained relations with each other and in this respect matter went in Court and decided in his sister's favour directing the complainant's bahnooi Rizwan Butt to keep his wife separate house and also pay maintenance allowance. On that evening i.e. 07.04.2011 at 07:00 p.m., they were present in their house when Aamir Butt, Rizwan Butt, Imran Butt sons of Latif Butt all three armed with pistols 30 bore alongwith their uncle Kala (Mushtaq Akhtar Butt-petitioner), Azhar armed with pistol 30 bore accompanied by Idrees and Ali entered inside the house and stated that they would teach them lesson for winning the case in the Court. Apprehending the foul intentions of the accused, complainant's father Nazeer Butt, his brothers Yasir Butt and Saqib Butt also reached there and on seeing them, accused Aamir Butt, Rizwan Butt and Imran Butt started firing. Rizwan Butt with the intention to commit murder directly fired at complainant's father hitting him on his chin who fen down; that the complainant tried to forbade the accused and in the meanwhile Aamir Butt fired hitting him on his leg and arm.
It raised hue and cry inside the house, when the complainant's younger sister Sumaira came of and Imran Butt fired at her hitting her near the neck. On raising alarm by the complainant etc., accused alongwith accomplices while waving their respective weapons fled from the spot; that the complainant handled his father who was at the last breathes of his life and subsequently died due to the fire shot injuries. Complainant's brothers and the other residents of the locality removed the complainant, his father and sister Sumaira in injured condition to hospital where his father subsequently died, It was alleged that the accused Rizwan Butt, Imran Butt and Aamir Butt alongwith their uncle Kala (Mushtaq Akhtar Butt petitioner) and other companions Azhar, Idrees and Ali in connivance with each other entered into the house and committed the alleged offence.
On this report, above- mentioned case was registered. Both the petitioners were subsequently arrested.
3. Learned counsel for the petitioner Muhammad Idrees argued that the petitioner initially got interim prearrest bail from the Court of learned Additional Sessions Judge but on 18.04.2011 he withdrew the same and was arrested, remained under investigation and subsequently sent to judicial lock-up; that no role is attributed to Idrees petitioner in the F.I.R, as he was shown empty handed; that no incriminating material during investigation whatsoever was recovered from his possession nor any recovery was shown effected against him; that he only on the reasons that tie was a close friend of one of the accused, Imran Butt, has falsely been involved in this case; that the petitioner is detained in the lock-up and is no more required by the police; that case of the petitioner requires further probe falling under Section 497(2), Cr.P.C.
4. Learned counsel for the petitioner Mushtaq Akhtar Butt alias Kala also agitated on the similar grounds as he was only shown present at the spot without attributing any specific role during the occurrence; that he did not cause any injury to any of the injured or the deceased; that he was also arrested and sent to judicial lock-up and nothing was recovered from his possession. Both the learned counsels while relying on 2011 SCM R 902 'Manzoor Hussain and another v. The State', 2010 P.Cr.L.J. 390 'Muhammad Hanif v. State', 2011 SCM R 161 'Abid Ali alias AII v. The State', 2007 M LD 1846 'Muhammad Nawaz v. The State', 2011 M LD 594, 'Badshah v. The State', 2010 YLR 2176 'Muhammad Laik and another v. The State' and 2007 M LD 21 'Muhammad Nawaz and others v. The State' prayed that both the petitioners be admitted to post-arrest bail.
5. On the other hand, learned D.P.G, assisted by the learned counsel -for the complainant vehemently opposed these bail petitions on the grounds that both the petitioners trespassed into the house of the complainant, form an unlawful assembly and in furtherance of achievement of their common object their co-accused caused the death of the complainant's father, injured him and his sister. Learned counsel for the complainant while arguing added that application of Section 449, P.P.C, in the circumstances is clearly made of as the petitioners accused with the intention to commit offence punishable with death trespassed into the house of the complainant, hence each and every accused irrespective of his role attributed is responsible vicariously for the at and omission committed by his co-accused. While relying on 1969 SCM R 107 'S.M Zaheer v. The State', 1996 SCM R 1845 'Shoaib Mehmood Butt v. Iftikhar-ul-Haq and 3 others', 2000 SCM R 1599 'Pervaiz Iqbal and another v. The State' and 2004 YLR 1801 'Dilmir Hussain v. The State' prayed that both the bail petitions be dismissed.
6. I have heard the learned counsel for the parties and perused the record.
7. If the narration and the allegations levelled in F.I.R, lodged by the complainant Muhammad Asif Nazeer Butt are seen, he has shown that both the petitioners entered into the house alongwith their co-accused but they were empty handed. They did not cause any injury to the deceased or the witnesses. They remained on physical remand and nothing incriminating was recovered from their possession, It is worth mentioning here that at the time of registration of F.I.R. Section 449, P.P.C, was not applied till 07.06.2011 however, subsequently according to the case diary No. 25, dated 11.06.2011 Section 449, P.P.C, is shown added. Admittedly role of both the petitioners and their vicarious liability only can be seen after recording the evidence and conducting the trial by the learned Trial Court. At present they are shown as silent spectators in whole of the occurrence except that they were allegedly shown present at the spot alongwith their co-accused, In these circumstances case of both of the petitioners requires further probe falling under Section 497(2), Cr.P.C, In these circumstances while relying on the judgments cited by the learned counsel for the petitioners especially 2011 SCM R 902 'Manzoor Hussain and another v. The State' whereby their lordships of the Hon'ble Supreme Court of Pakistan observed at page 905 "Bail cannot be refused on the basis of vicarious liability, unless it is shown through positive evidence that indeed accused had played a role in the crime in question." both the petitioners are allowed and the petitioners are admitted to post-arrest bail in the sum of Rs. 2,00,000/- (Rupees two lac) each with two sureties each in the like amount to the satisfaction of the learned Trial Court. Any observation made by this Court while disposing of these petitions is that of tentative in nature and shall not affect the case of either side on merits at trial stage.