ABDUL SAMI KHAN, J.---Through this petition under section 497, Cr.P.C. the petitioner has sought bail after arrest in case FIR No.1155/17 dated 03.06.2017 under sections 302, 34, P.P.C., registered at Police Station Shahdara, Lahore.
2. I have heard the learned counsel for the parties and have gone through the record with their able assistance. This is bail after arrest and only tentative assessment is required at this stage. It has been noticed by this Court that the petitioner is not named in FIR, wherein it is mentioned that co-accused Mian Attiq-ur-Rehman pushed down Rafaqat Ali deceased, son of the complainant, on ground and pressed his neck, while two unknown accused pushed down the complainant on ground. During investigation, the petitioner was arrested and was sent to jail for the purpose of identification parade and during the course of identification parade, the complainant and the PWs, while identifying the petitioner, assigned a joint role of giving beating to the deceased, but postmortem report of the deceased reflects that except the fracture of hyoid bone there is no mark of violence on the body of deceased. Moreover, co-accused Mian Attiq-ur-Rehman who has been assigned the role of pressing neck of the deceased by the complainant and the PWs has already been declared innocent, which prima facie creates doubt qua B the story of incident and it is settled law that the benefit of doubt can be given to accused even at bail stage. As far as the contention of learned counsel for the complainant that the petitioner has been duly identified by the complainant and the PWs during the proceedings of identification parade is concerned, admittedly the petitioner was arrested by the police on 05.07.2017 and was kept in police station for one day and thereafter was lodged in jail for the purpose of identification parade on 06.07.2017.
Moreover, the complainant and the PWs also did not assign any specific role to the petitioner in this occurrence during the proceedings of identification parade, therefore, the evidentiary value of identification parade against the petitioner shall be determined by learned trial court after recording evidence. Taking into consideration the above mentioned facts and circumstances of the case, the instant case has become a case of two versions i.e. one put forward by the complainant in FIR and the other came on record during investigation and the question as to which version is correct shall be determined by learned trial court after recording evidence. Reliance is placed upon "Ehsan Ullah v. The State" (2012 SCM R 1137), wherein the Hon'ble Supreme Court of Pakistan has observed as under:-- "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 form behind the scene. All these considerations surely render the case against the petitioner one of further inquiry into his guilt."
Reliance can also be placed upon pronouncement of Hon'ble Supreme Court of Pakistan in case titled "Zaigham Ashraf v. State, etc." (2016 SCM R 18) wherein the Apex Court has been pleased to observe as under:-- "Keeping in view the two conflicting versions; one given by the complainant in the FIR and the other by the Investigating Agency based on documentary evidence with regard to the plea of alibi, the case of the present petitioner has become certainly one of further inquiry, falling within the ambit of subsection (2) of section 497, Cr.P.C., where grant of bail becomes the right of accused and it is not a grace or concession, to be given by the Court. In the absence of any exceptional ground or reason, denial of bail in such a case would amount to exercise a discretion in a manner, not warranted by law and principle of justice."
It is settled law that the questions of sharing common intention and vicarious liability of the petitioner in the commission of alleged offence shall be determined by learned trial court after recording evidence.
Admittedly the petitioner is previous non-convict and never involved in any other case of such like nature; he is behind the bars since 26.07.2017 but his trial has not seen any fruitful progress as yet.
Investigation of the case to the extent of the petitioner is complete and he is no more required for further investigation, therefore, no useful purpose would be served by keeping the petitioner behind the bars at this stage.
3. For what has been discussed above, taking guidance from the above mentioned case-law, the case of the petitioner becomes one of further inquiry covered by subsection (2) of section 497, Cr.P.C. This petition is, therefore, allowed and the petitioner is granted bail after arrest subject to his furnishing bail bond in the sum of Rs.200,000/- (Rupees two hundred thousand only) with two sureties each in the like amount to the satisfaction of the learned trial court.
4. The observations made above are tentative in nature and are strictly confined to the decision of this bail petition only.