' SAYYED MAZAHAR ALI AKBAR NAQVI, J.---By means of instant petition, Muhammad Ashraf/petitioner has sought for his post-arrest bail in case F.I.R. No,527, dated 22-7-2011, initially registered under sections 302, 324, 148, 149, P.P.C., at Police Station Saddar Depalpur, District Okara, at the instance of , Irshad Ahmad son of Muhammad Nawab complainant/respondent No,2.
Subsequently offence under sections 148, 149, P.P.C., were deleted and offence under sections 336, 337-F(iii), 34, P.P.C., were added.
2. Prosecution story in brief, as per contents of the crime report is that on 22-7-2011 at 4-00 p.m. The petitioner while armed with pistol 30-bore along with his other co-accused also armed with firearms attacked upon the complainant party. Due to firing made by co-accused Shabbir Ahmed, brother of the complainant was done to death and the others sustained injuries. The petitioner has been attributed the role of fire shot, which landed on right shin of Jan Muhammad, injured P.W.
3. Learned counsel for the petitioner submits that the petitioner is innocent and has falsely been involved in the instant case against the actual facts and circumstances. Learned counsel vehemently contends that only allegation against the petitioner is of making fire shot with pistol .30-bore, which landed on the right shin of Jan Muhammad, injured P.W., however, during the course of investigation nothing was recovered on his pointing out. Adds that even the Investigating Officer had arrived at the conclusion that the petitioner was only present at the place of occurrence at the relevant time and he was not armed with any weapon. It is next argued that if the prosecution version is presumed to be true as it is even then to the extent of the petitioner provisions of section 337-F(iii), P.P.C., attract to the facts of the case for which maximum punishment provided under the statute is three years. Learned counsel urges that Muhammad Khalid Hussain and Muhammad Yasin, co-accused were admitted to pre-arrest bail by this Court vide order dated 1-3-2012 passed in Criminal Miscellaneous No,17178-B of 2012, hence the petitioner is also entitled to the relief prayed for on the plea of consistency. It is further argued that in these circumstances prosecution case against the petitioner calling for further probe falls within the ambit of section 497(2), Cr.P.C. And nevertheless challan stands submitted, however, there is no plausible progress in trial. Learned counsel lastly prays for indulgence of the Court in the circumstances.
4. Learned Deputy Prosecutor-General, while controverting the contentions raised by learned counsel for the petitioner submits that the petitioner is well nominated in the crime report with specific role of making firing with his pistol .3-bore, who was member of an unlawful assembly, which assaulted upon the complainant party, hence his case cannot be isolated from his co- accused and the case against the petitioner involving capital punishment he is not entitled to the concession of bail. When confronted, Learned Deputy Prosecutor-General concedes that during the course of investigation the Investigating Officer arrived at the conclusion that the petitioner was only present at the place of occurrence empty-handed at the relevant time and he did not play any overt act.
5. Learned counsel for the complainant submits that he has filed the Power of Attorney today, hence not in a position to argue the case and prays for an adjournment. Perusal of record reveals that the instant petition was filed on 26-6-2012 in which notice was issued on 2-7-2012. On 16-7- 2012 the complainant had appeared before the Court and he was granted adjournment to engage counsel. On 30-7-2012 no body on behalf of the complainant had attended the Court and thereafter case was fixed on 10-8-2012 on which date complainant apprised the Court that due to bad weather his learned counsel could not attend the Court and the matter was adjourned to 17- 8-2012. Even on that date, Jan Muhammad injured witness stated before the Court that his learned counsel was observing Aitkaaf and the case was adjourned. Such delaying tactics adopted by the complainant side cannot be assented to by this court; thereby depriving the petitioner from his constitutional/guaranteed right. Hence the matter is being decided in view of arguments advanced by learned counsel for the petitioner and learned Deputy Prosecutor-General.
6. Heard. Record perused.
7. Perusal of record reveals that in the F.I.R. The petitioner has been assigned the role of making fire shot with his pistol .30-bore, which landed on right shin of Jan Muhammad, injured P.W. And he has not been ascribed any overt act which in any way contributed towards death of deceased. Prima facie, in view of allegations levelled in the crime report at the most case against the petitioner attracts provisions of section 337-F(iii), P.P.C., for which maximum punishment provided under the statute is only three years. Most pivotal aspect of the case is that during the course of investigation, the Investigating Officer had concluded that the petitioner was only present at the place of occurrence and he did not participate in the same. Fact also remains that during the course of investigation nothing was recovered on the pointing out of the petitioner. It is worth mentioning that such findings of the police are still in field having not been challenged before any higher forum.
8. In such circumstances culpability of the petitioner regarding his vicarious liability shall be determined during the course of trial after recording the prosecution evidence. So far as contention of the learned Deputy Prosecutor General that the petitioner is not entitled to grant of relief prayed for because case against him falls within prohibitory clause is concerned, suffice it to say that august Supreme Court of Pakistan in the reported case Muhammad Ismail v. Muhammad Rafique and another (PLD 1989 SC 585) has held that when otherwise case against the accused is covered under subsection (2) of section 497, Cr.P.C. He is entitled to the concession of bail as a matter of right. Similar view was affirmed by august Supreme Court of Pakistan in the case of Abdul Hameed v. Zahid Hussain alias Papu Chaman Patiwala and others (2011 SCM R 606). The petitioner is stated to be behind the bars since the date of his arrest and the investigation being complete his person is no more required by the police for further investigation. Needless to mention that basic law is bail not jail.
9. For the foregoing facts and circumstances, this Court is persuaded to hold that sufficient grounds exist to allow this petition as a consequence whereof Muhammad Ashraf/petitioner is admitted to bail after arrest subject to his furnishing bail bonds in the sum of Rs,1,00,000 with one surety in the like amount to the satisfaction of the learned trial Court.