Through instant petition, petitioners Khalid Mehmood son of Nazar Hussain and Khalid Mehmood son of Muhammad Ali seek post arrest bail in case FIR No.334/2014 dated 12.10.2014 under sections 302, 34 PPC registered at Police Station Bhagtanwala District Sargodha.
2. Briefly the prosecution story as unfolded in the F.I.R. Is that on the day of occurrence at about 12.00 Noon when the complainant alongwith Mazhar Abbas son of Nazar Hussain and Munir Ahmad son of Dost Muhammad were present at his Dera, where his son Tanveer Ahmad was also present.
Suddenly three police officials alongwith two unknown person in civil clothes came to his Dera on two motor cycles and Tanveer Ahmad son of the complainant upon seeing the petitioners and others ran away whereupon the accused persons started firing upon Tanveer Ahmad son of the complainant, who succumbed to the injuries at the spot.
3. I have heard learned counsel for the parties and perused the record.
4. Although the petitioners alongwith other co-accused are nominated in the F.I.R. And there is specific allegation against all the accused persons that they made firing upon the deceased, who succumbed to the injuries at the spot, but perusal of post mortem report reveals that there is only one entry wound on the person of the deceased. To clarify this situation complainant made supplementary statement on the same day alleging therein that the fire was made on the deceased by one Adnan, which landed on the left shoulder of the deceased and went through and through. No injury according to the supplementary statement made by the complainant is attributed to the petitioners. Therefore, whether the petitioners are vicariously liable for the act done by their co-accused would be adjudged by the learned trial Court after recording the evidence. Even according to the result of investigation, the petitioners were found innocent and in fact a discharged report was also prepared to their extent, which was not agreed upon by the learned Area Magistrate. Nothing was recovered from the possession of the petitioners during the course of investigation.
5. The petitioners are behind the bars since their arrest. Investigation qua them is complete.
Challan has been submitted before the learned trial Court by placing the name of the petitioners in column No.2. No useful purpose would be served by keeping the petitioners behind the bars for an indefinite period. Reliance is placed on case of "Manzoor Hussain and another vs. The State" (2011 SCM R 902) wherein their lordship were pleased to hold as follows: - "It would be seen that bail cannot be refused on the basis of vicarious liability, unless it is shown through positive evidence that indeed co-accused played a role in the crime in question."
Reliance is also placed on the case of "Ehsan Ullah Vs. The State" (2012 SCM R 1137) wherein their lordship were pleased to observe as follows: "It is not disputed that nothing had been recovered from file petitioner's possession during the investigation of this case. It is pertinent to mention that the investigating agency had reached at a definite conclusion that the petitioner was not even present at the scene of the crime at the relevant time and as a matter of fact he had provided behind the scene abetment to his co- accused for commission of the alleged offences and this is why the petitioner has been recommended for trial only in respect of an offence under section 109 PPC. This shows that in the present case the prosecution itself has two versions vis-a-vis the petitioner, first of the complainant party according to which the petitioner was present at the spot and had resorted to firing and second of the investigating agency according to which the petitioner was not present at the spot and he was abetting his co-accused from behind the scene. All these considerations surely render the case against the petitioner one of further inquiry into his guilt."
6. In view of above matter to the extent of petitioner has become one of further inquiry as contemplated under sub-section (2) of section 497 Cr.P.C.
7. Resultantly, instant petition is accepted and the petitioners are admitted to post arrest bail subject to their furnishing bail bonds in the sum of Rs.200,000/- (rupees two lacs only) each with two sureties each in the like amount to the satisfaction of learned trial Court.
8. The observations made supra are tentative in nature and would not effect merits of case of either party.