' SAYYED MAZAHAR ALI AKBAR NAQVI, J.---Through the instant petition, the petitioner has sought for his post-arrest bail in case F.I.R. No,1172, dated 24-7-2012, offence under sections 302, 109, 34, P.P.C., registered with Police Station, Shandara, Lahore.
2. Allegation against the petitioner, in brief, as per contents of the crime report is on 26-7-2012 at 4- 00 p.m. He raised lalkara to teach a lesson to Muhammad Ashraf (deceased) qua pursing murder case against them. Subsequently his co-accused committed murder of Muhammad Ashraf.
3. Learned counsel for the petitioner contends that the petitioner has falsely been involved in the instant case by the complainant against the actual facts and circumstances due to previous enmity. It is contended that there is only allegation of raising lalkara against the petitioner and no overt act is ascribed to him. Adds that no role whatsoever has been ascribed to the petitioner towards murder of the deceased. It is argued that the petitioner was not armed with any weapon at the time of alleged occurrence. Contends that the petitioner is behind the bars since the date of his arrest and investigation being completed, his corpus is no more required by the police for further investigation and as such no useful purpose would be served by his further detention in jail.
4. Contrarily, learned Deputy Prosecutor-General Officer has vehemently opposed this petition. It is submitted that the petitioner is duly nominated in the promptly lodged F.I.R. With specific role of raising lalkara. Contends that the petitioner was instrumental in commission of the offence. It is also argued that the offence alleged against the petitioner falls with the prohibition contained in section 497(1), Cr.P.0 . Learned Deputy Prosecutor-General submits that the petitioner is also involved in another case qua murder of mother of the present complainant. Moreover, the petitioner was found guilty during the course of investigation and as such he is not entitled to the relief prayed for by means of instant petition.
5. Arguments advanced from both sides have been heard. Record available on file perused.
6. Admittedly the petitioner is named in the F.I.R., but I am afraid this Court has to see from the facts and circumstances whether case against the petitioner to the extent of grant of relief prayed for is made out or not. Bare reading of the crime report reflects that no overt act is ascribed to the petitioner and the only role ascribed to the petitioner is raising lalkara. Previous enmity between the parties is an admitted factum. The petitioner was not even stated to be armed with any weapon.
Whenever no overt act is ascribed to the petitioner/accused, the Superior Courts are lenient towards admitting him to bail. Even otherwise, grant of bail does not mean that the accused has been acquitted; rather the custody is handed over in the hands of the surety. While dealing with a similar question, the august Supreme Court of Pakistan in the case of Rafiq Khan v. The State (1995 SCM R 343), has observed as under:-- "S. 497---Penal Code (XLV of 1860), Ss:302/324, 149/148---Constitution of Pakistan (1973), Art. 185 (3)---Bail, grant of---Only active role attributed to the accused in the occurrence was of raising a Lalkara---Petition for leave to appeal was converted into appeal and the accused was released on bail in circumstances".
' In the case of "Tariq Zia v. The State" (2003 SCM R 958), following dictum of law has been laid down by the august Supreme Court of Pakistan:-- "----497---Penal Code (XLV of 1860), Ss. 364/302/148/149---Constitution of Pakistan (1973), Art. 185 (3)---Bail---Accused had allegedly raised a "Lalkara" on which his co-accused attacked the complainant side---F.I.R. Stated that accused was empty-handed and had not played any active role in the commission of the offence---Trial Court was yet to determine the effect of the aforesaid "Lalkara" after recording evidence---Petition for leave to appeal was converted into appeal in circumstances which was accepted and the accused was allowed bail accordingly".
7. So far as contention of the learned Law Officer that offence against the petitioner entails capital punishment, therefore, he is not entitled to grant of relief prayed for is concerned, suffice it say that in the case of Muhammad Ismail v. Muhammad Rafique and another (PLD 198 SC 585), the august Supreme Court of Pakistan 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 C of right.
8. In sequel to above I am inclined to hold that sufficient grounds exist to enlarge the petitioner on post-arrest bail. Resultantly, the instant petition is accepted as a consequence whereof the petitioner is admitted to bail after arrest subject to his furnishing bail bonds in the sum of Rs,1,00,000 with two sureties each in the like amount to the satisfaction of the learned trial Court.