MEHMOOD MAQBOOL BAJWA, J. - Shuaib Ellahi, petitioner seeks post-arrest bail in case F.I.R. No. 356 of 2011 registered under Sections 302, 34 of the Pakistan Penal Code, 1860, at Police Station, Alipur Chatha District Gujranwala.
2. F.I.R, was recorded at the instance of Muhammad Afzal, father of Tousif Noor deceased, according to which on 1.5.2011 at about 9.30 p.m. His brother Asif called him at his dera in presence of Hafiz Tariq and Shuaib and inquired whereabouts of his son Tousif Noor (deceased) and complainant in turn intimated his brother that his Son has gone to Kaka Kola in order to see his maternal aunt, upon which Asif, brother of complainant, borrowed a jeep from Muhammad Nawaz.
He alongwith his brother Asif and Shuaib Ellahi (present petitioner) went to Kaka Kola and came back to the dera of his brother at 1.00 a.m. (night), where suddenly Asif and Hafiz Tariq started giving beating to his son. Present petitioner while putting mobile near mouth of deceased kept on asking him to speak in mobile when he was subject to torture by the co-accused ultimately resulting in his death after five days of the occurrence.
3. Heard adversaries and perused the record.
Learned counsel for the petitioner maintained that petitioner is though nominated in the F.I.R, but no overt at has been attributed to him. Referring to the contents of F.I.R., it has been maintained that no injury has been attributed to the petitioner which was caused by him to the deceased and role of causing injury is attributed to Asif, paternal uncle of deceased as well as Hafiz Tariq.
Submitted that motive has not been attributed to the petitioner and as such case of petitioner has become that of further inquiry., Suggested that nothing was recovered at the instance of petitioner to connect him in the offence under which the case has been registered.
Contesting the bail application, learned DPG and learned counsel for the complainant maintained that petitioner is nominated in the F.I.R. Further submitted that keeping in view the nature of allegation and motive as well as background of occurrence, present petitioner is the principal accused and as such is not entitled to concession of bail. Learned counsel for the complainant while highlighting the alleged background resulting in occurrence maintained that petitioner by impersonation recorded false voice of the deceased which was communicated to paternal uncle of the deceased in order to suggest illicit liaison of the wife of Asif with others which resulted in retaliation by Asif brother of the complainant and paternal uncle of deceased and as such is not entitled to concession of bail. Argued that petitioner was present at the time of occurrence and shared common intention within the meaning of Section 34 of the Pakistan Penal Code, 1860 in the offence which falls within prohibitory clause which disentitles him to have premium of post-arrest bail. "
4. Though the petitioner is nominated in the F.I.R, but nevertheless no overt at has been attributed to him. Admittedly the petitioner did not cause injury to the deceased. There is just allegation at the instance of complainant against the petitioner that the petitioner put mobile phone in front of mouth of deceased requiring him to speak. Since no overt at has been attributed to the petitioner, therefore, case of petitioner has become that of further inquiry. Culpability of petitioner with reference to sharing common intention is a question of fact, which can be decided at the time of conclusion of trial. The petitioner is in judicial lock-up and no more required for' further investigation. Detention of petitioner as such for an indefinite period will not serve any useful purpose particularly when the conclusion of trial is not in sight in near future.
5. Pursuant to above discussion, application for post-arrest bail is accepted and the petitioner is admitted to bail subject to furnishing of bail bond in the sum of Rs.1,00, 000/- with two sureties in the like amount to the satisfaction of learned Trial Court.