' NOOR-UL-HAQ N. QURESHI, J.---Through the present bail petition, the petitioner seeks post-arrest bail in connection with F.I.R. No.41 dated 19-2-2013 under sections 302/34/109, P.P.C. Registered at Police Station. Koral, Islamabad.
2. As per facts narrated by the complainant in the above F.I.R., the petitioner along with other co- accused namely Imran and Tanveer, armed with Kalashnikov, came to the place of occurrence and tried to stop the complainant party from raising construction and upon resistance, all three accused went over the roof of the adjacent house from where, accused Imran made straight fire, which landed on the back side of the chest of one Khalid Farooq, who succumbed to injuries. The petitioner filed petition for post-arrest bail which was dismissed by the learned Additional District and Sessions Judge, Islamabad (East), vide his order dated 16-1-2014.
3. Learned counsel for the petitioner has argued that the petitioner has been falsely implicated in the present case. His co-accused participated in the occurrence, due to his firing, the deceased died. No specific role has been attributed to the present petitioner and the recovery made from him is fake, which was planted upon the petitioner. His case needs further inquiry and probe into the guilt of the petitioner meaning thereby that section 497(2), Cr.P.C. Attracts in the present case.
The present petitioner is behind the bars since his arrest, investigation is complete and Challan has been furnished in the Court. In support of his contentions, learned counsel has relied upon 2011 SCM R 902, 2012 YLR 1309, 2013 YLR 1225 and 2013 YLR 1433.
4. On the other hand, while entering appearance, learned counsel for the complainant has submitted power of attorney, which has been taken on record. He has vehemently opposed this bail petition on the ground that petitioner is directly charged in the present F.I.R.. He is equally responsible for his act due to common intention with his co-accused Imran. He argued that petitioner is involved in a heinous,offence and under section 302/34, P.P.C., vicarious liability is also upon him in view of application of section 34, P.P.C. He further argued that elaborate sifting of evidence could not be made at the time of deciding bail application, but only tentative assessm ent of the same is to be made. He further argued that the present petitioner, due to his shared common intention to murder the deceased, would be disentitled for grant of bail in murder case under section 302, P.P.C. In support of his contention, learned counsel has relied upon 2004 SCM R 1889, 1999 PCr.LJ 1 and 2006 PCr.LJ 1984.
5. Learned Standing Counsel has mostly adopted the arguments as advanced by the learned counsel for the complainant. It is also alleged that petitioner being an associate of main accused cannot be allowed bail.
6. I have carefully heard the arguments, perused the record and the material available has also been scanned as well as authorities referred by both the sides.
7. I am of the opinion that in spite of the fact that present petitioner has been shown available at the scene of incident duly armed with Kalashnikov as argued by the prosecution, but yet, two incidents' were narrated. Earlier, Imran and Rashid tried to possess over the disputed property when they obtained stay order from the court. Later on, the present petitioner was cited in the F.I.R.
Ignoring the fact that present petitioner reached at the place of incident with Kalashnikov and restrained them from construction. Later on, Imran fired the burst from Kalashnikov, which hit Khalid Farooq on his left shoulder, who thereafter succumbed to injuries.
8. In the next episode, it is observed that throughout the allegations, no role has been attributed to the present petitioner except his presence at the scene of incident. The petitioner neither alleged to have fired in the air nor he facilitated any of the co-accused, nor made any Lalkara or extended threats of any kind. Therefore, mere presence of the present petitioner at the scene of incident creates doubt about vicarious liability. Ultimately, his role will have to be determined during trial after recording of evidence and the material available on record. Such role assigned to the present petitioner creates a reasonable doubt about his participation in the commission of instant offence.
9. Therefore, in my humble view, the petitioner cannot be detained further merely on the basis of such role assigned to him, which in view of prosecution story is a vicarious liability.
10. Allegedly, recovered. Kalashnikov was not found loaded with bullets, which too, creates doubt about the involvement of the petitioner in the present case.
11. Since it is a matter, which require further probe into the guilt of the present petitioner, therefore, in my humble view, the petitioner deserves for grant of bail.
12. Moreover, co-accused namely Sajid Hussain Shah has already been granted bail by this Court vide order dated 9-12-2013 passed in Criminal Miscellaneous No.685-B of 2013.
13. For what has been discussed above, instant bail petition is allowed. Consequently, the petitioner is ordered to be enlarged on bail, subject to furnishing bail bonds in the sum of Rs.2,00,000 (Rupees Two Lac) with one surety in the like amount to the satisfaction of learned trial Court.
14. Since the above observations are tentative in nature therefore learned trial Court needs not to be influenced by the same.