' ABDUS SATTAR ASGHAR, J.--- Zulfiqar Ali petitioner/accused in Case No,98 of 2011, dated 28-5-2011, under section 302/34, P.P.C., Police Station Havaili Koranga, District Khanewal has sought post- arrest bail through this petition under section 497, Cr.P.C.
2. As per F.I.R. Lodged on the statement of Shameer complainant on 28-5-2011 at 2-45 a.m. It is alleged that the same night at about 2-00 a.m. He along with his son Waris was sleeping in the courtyard of the house whereas his other son namely Sabir Hussain was sleeping at the roof of the house; that in the meanwhile 'Kamlana Brother' raised noise that Haitam Hiraj having illicit relations with Parveen daughter of Noor Muhammad is available in the house of Noor Muhammad; that they also woke up on the report of noise; that in the meanwhile Liaqat Ali, Zulfiqar (petitioner), Naseer Ahmed alias Pannu and Bashir Ahmed, all Kamlana by caste, reached complainant's house and called Sabir Hussain to join them to apprehend Haitam Hiraj; that complainant's both sons namely Waris and Sabir Hussain accompanied them and he also followed them and reached in front of house of Noor Ahmed Kamlana; that Muhammad Islam was also standing there; that Liaqat Ali reached there while driving tractor and light of the tractor was functional; that he (complainant) along with Naseer Ahmed alias Pannu armed with gun .12 bore (double barrel). Zulfiqar (petitioner) and Bashir was also standing there; that in the meanwhile Haitam Hiraj came out climbing the wall of the house of Noor Ahmed, whereupon Liaqat Ali asked Sabir Hussain to chase and apprehend Haitam Hiraj; that Sabir Hussain ran to apprehend Haft= Hiraj; that in the meanwhile Zufiqar (petitioner) raised lalkara to take opportunity and kill Sabir Hussain by firing whereupon Naseer Ahmed alias Pannu handed over his gun to Liaqat Ali and the said Liaqat Ali within their sight fired a straight shot with gun which hit Sabir Hussain on the backside of his skull who fell down at the spot; that he along with Muhammad Waris and Islam, etc. Attended Sabir Hussain who succumbed to the injuries at the spot; that accused Liaqat Ali, Naseer Ahmed alias Pannu, Zulfiqar Ahmed and Bashir Ahmed in furtherance of their common intention have killed Sabir Hussain. Motive is that complainant has animosity with Liaqat Ali and others of Kamlana Brothery'.
3. Learned counsel for the petitioner has argued that no injury to the deceased or other P.W. Is attributed to the petitioner; that no recovery is effected from him; that no previous animosity or motive is substantiated; that mere proverbial lalkara is attributed to the petitioner, which is matter of further inquiry in the alleged circumstances.
4. It is resisted by learned Deputy Prosecutor-General for the State assisted by learned counsel for the complainant with the arguments that in a promptly lodged F.I.R. Petitioner is particularly nominated with a specific role of raising commanding lalkara to Liaqat Ali, who caused firearm injury on the backside of head of Sabir Hussain resulting into his death at the spot; that petitioner actively participated in the occurrence; that challan has been sent up and charge has been framed but no P.W. Is recorded till date, therefore, he is not entitled to the concession of bail.
5. I have given patient hearing to learned counsel for the parties, learned Deputy Prosecutor- General for the State and perused the record.
6. Petitioner's empty-handed presence at the spot is alleged as per contents of F.I.R. No injury is attributed to the petitioner upon the deceased or any other P.W. No overt act except proverbial lalkara is attributed to the petitioner. In the given circumstances it is yet to be established as to whether actual assailant namely Liaqat Ali acted independently or under the influence of the petitioner at the time of commission of the offence. Plea of previous animosity or alleged motive is not substantiated with any speck of material. Plea of common intention or vicarious liability is yet to be established during the course of evidence. Case is therefore a matter of further inquiry.
Admittedly, despite framing of charge no P.W. Is recorded till date. Petitioner is aged about 65 years. In such circumstances bail cannot be refused as a matter of punishment. Reliance be made upon Rafiq Khan v. The State (1995 SCM R 343).
7. For the foregoing discussion and reasons, instant petition is accepted and petitioner is allowed post-arrest bail subject to furnishing bail bonds in the sum of Rs,200,000 (rupees two lacs) with one surety in the like amount to the satisfaction of the trial Court.