ORDER ABDUL SAMI KHAN, J. - Through this petition under Section 497, Cr.P.C. Babar Masih petitioner has sought bail after arrest in case F.I.R. No, 358/10, dated 19.09.2010 registered at Police Station Faizabad, District Nankana Sahib in respect of an offence under Sections 302/324/148/149/109, P.P.C.
2. The learned counsel for the petitioner contends that the petitioner has been roped in this case by the complainant with mala fide intention and ulterior motives after joining hands with the local police. The petitioner has not been attributed any specific role. In this case as many as six accused have been involved In the complainant and the allegation upon them is that they have fired on the deceased. The petitioner remained on physical -remand but nothing was recovered from him and during investigation an affidavit has been tendered by the were of the deceased alongwith injured PW in favour of the petitioner due to which the petitioner has been declared innocent by the investigating officer. Four co-accused of die petitioner have already been allowed bail The petitioner was refused bail by the learned Trial Court merely on the ground that he became absconder but mere transconscious of the petitioner does not disentitle him for the concession of bail when otherwise he becomes entitle for grant of bail on the merits of the case. The petitioner is previous nonconvict, never involved in such-like cases, he is behind the bars for the last more than four months, investigation is complete and the person of the petitioner is no more required for the purpose of further investigation, therefore, his further incarceration would not serve any beneficial purpose. The learned counsel for the petitioner relied upon 2012 SGMR 1137.
3. On the other hand the learned Deputy Prosecutor General assisted by the learned counsel for the complainant submits that the petitioner is named in the F.I.R, and specific role is attributed to him therein, It is a broad daylight occurrence, parties are known to each other and there is no chance of mistaken identity. Opinion of the police is not binding on the Courts of law. There is ample evidence in shape of statements under Section 161. Cr.P.C, got recorded by the prosecution witnesses during the investigation of this case. The offence with which the petitioner is charged falls under the prohibitory clause of Section 497, Cr.P.C. The petitioner has shared common intention with his co- accused and has committed the offence in question. The offence with which the petitioner is charged falls within the prohibitory clause of Section 497. Cr.P.C. The petitioner remained Proclaimed Offender for a long time. Challan in this case has been submitted and at this stage if the petitioner is enlarged on bail the case of the prosecution would be prejudice. There is absolutely no mala fide on the pan the complainant to falsely involve the petitioner in this case.
The learned counsel for the complainant has placed reliance on 2011 YLR 1719 and 2011 M LD 1171.
4. I have heard the learned counsel for the parties and have gone through the record of this case with their able assistance. It has been noticed by this Court that in the F.I.R, no specific role has been attributed to the petitioner during the occurrence in this case. The complainant has involved as many as six accused in this case who had allegedly made indiscriminate firing at the deceased which lie sustained on his abdomen and right shoulder but no specific role has been assigned to any of the accused. Admittedly during the investigation of this case the petitioner remained on physical remand but nothing was recovered from him. During the investigation of this case were of the deceased and injured victim have sworn affidavits to die effect that the petitioner is not involved in this case and on the basis of such affidavits the petitioner I has been found innocent by the police which shows that opinion of the police regarding innocence of the petitioner is based upon some material, thus, the same can be considered at this stage. Four co-accused of the petitioner have already been allowed bail. It is settled law that vicarious liability of an accused is to be determined by the learned Trial Court after recording of evidence. The petitioner is previously non-convict, investigation of this case qua the petitioner is complete, he is behind the bars for the last more than four months, his person is not required for the purpose of further investigation, therefore, his continuous incarceration in jail would not serve any beneficial purpose at this stage.
6. For what has been discussed above the case against the petitioner calls for further inquiry into his guilt within the purview of subsection (2) of Section 497, Cr.P.C. This petition is, therefore, allowed and the petitioner is admitted to bail subject to his furnishing bail bond in the sum of Rs. 100,000/- (Rupees one hundred thousand only) with two sureties each in the like amount to the satisfaction of the learned Trial Court.