' Anwar, the petitioner seeks the grant of post-arrest bail in case FIR No, 316/2013 dated 06.08.2013 registered under Sections 302 & 34, PPC at Police Station Kot Mithan, District, Rajanpur.
2. The allegation against the petitioner is that he along with his two sons, nominated in the FIR murdered Fazal Hussain Draishak son of the complainant, on the suspicion that the deceased was carrying on with the wife of one of the accused. Paind.
3. It is contended by the learned counsel for the petitioner that except for the proverbial lalkara no overt act is attributed to the petitioner, and he has been simply implicated in the case so that he might not pursue the case of his two sons, namely, Paind and Shaiq who are alleged to have given halchet blows to the deceased.
4. Mian Abdul Qayyum, learned Additional Prosecutor General, assisted by Fiaz Hussain and Muhammad Waseem Advocates, the learned counsel for the complainant oppose the granting of post-arrest bail to the petitioner on the grounds that the name of the petitioner finds mention in the FIR; that commanding lalkara is ascribed to the petitioner, and had he not provoked his sons into taking the life of Fazal Hussain Draishak he would not have been done to death; that supplementary statement of the complainant was recorded by the police on 6th August 2013 in which it was stated by him that the petitioner also inflicted injuries on the deceased which hit him on the little finger of the deceased. Towards the end of their submissions, they emphasized that both the sons of the petitioner are at large, and if the petitioner is admitted to bail, all the accused would be roaming around and causing annoyance to the complainant. Besides, the charge has been framed in the case and the trial has commenced.
5. I have heard the arguments of learned counsel for the petitioner as well as the learned Additional Prosecutor General and the learned counsel for the complainant and also gone through the record produced before the Court.
6. The petitioner is seventy five years old. He is father of the other two accused, namely, Paind and Shaiq, who are alleged to have inflicted hatchet blows on the person of the deceased. As for the petitioner, only proverbial lalkara is put down to him. As regards the argument of the learned counsel for the complainant that commanding lalkara is attributed to him, I would not like to go into polemics and semantics, but the fact remains that no overt act is attributed to him. In so far as vicarious liability is concerned, it can be determined only after holding fully fledged-trial.
7. This brings me to the arguments addressed at the bar that after the commencing of the trial, the petitioner is not to be admitted to bail. Such an argument has been repeatedly repelled by the Superior Courts. In the first place, the language used by the legislature is absolutely clear. The very wording in which Section 497, Cr.P.C. Is couched shows that an accused may be admitted to bail at any stage of inquiry, investigation or trial. In point of fact, this has been reiterated in quite recent judgments handed down by the Hon'ble Supreme Court of Pakistan. Reference may well be made to the judgments reported as Mst. Maria Khan versus The State and another' (201$ SCMR 49), ' Syed Khalid Hussain Shah versus The State' and another' (2014 SCM R 12) and 'Nisar Ahmad versus The State and others' (2014 SCM R 27), Even otherwise, the same, result follows from a bare perusal of the provisions of Section 497 Cr. P.C.
8. After considering all aspects of the case and after making a tentative assessment of the material produced before the Court, I am of the view that there is no sufficient incriminating material collected by the prosecution to connect the petitioner with the commission of the offence.
It cannot be lost sight of at the moment that the petitioner had no motive to carry out the murder of Fazal Hussain Draishak son of the complainant.
9. For what has been stated above the petitioner has been able to make out a case for further inquiry into his guilt within the meaning of Section 497, Cr.P.C., entitling him to be admitted to post- arrest bail subject, to his furnishing surety/bail bonds in the sum of Re.5,00,000/- (Rupees Five Hundred Thousand only) with one surety in the like amount to the satisfaction of the learned trial Court.
10. It is made clear that the above is the tentative assessment of the material produced before the Court for the purpose of deciding the bail application. Any observation made herein would not have any bearing on the trial of the case, which shall be decided on its own merits.
(A.S) Bail admitted.