Through this petition filed under section 497 Cr.P.C., the petitioner , namely Younas Hassan seeks post-arrest bail in the case FIR No. 462 of 2014, dated 10.06.2014, registered at Police Station City Chishtian, District Bahawalnagar , in respect of of fences under sections 302, 109 and 34 PPC.
2. The allegation as against the petitioner , namely Younas Hassan, culled from the evidentiary material produced before the Court, is that the petitioner raised a lalkara commanding his co-accused to kill Noman (deceased) and thereafter the co-accused of the petitioner namely Raza and Tahir Hassan made firing at the person of Muhammad Noman alias Nomi (deceased), causing his death.
3. I have heard the learned counsel for the parties, the learned Deputy District Public Prosecutor and have also gone through the record of this case with their able assistance.
4. A Court considering a bail application has to tentatively look to the facts and circumstances of the case and once it comes to the inference that no reasonable ground exists for believing that the accused has committed a non- bailable offence, it has the discretion to release the accused on bail. In order to ascertain whether reasonable grounds exist or not, the Court should confine itself to the material placed before it by the prosecution to see whether some perceptible evidence is available against the accused, which if left unrebutted, may lead to inference of guilt. Reasonable grounds are not to be confused with mere allegations or suspicions nor with tested and proved evidence, which the law requires for a person's conviction for an offence. The term "reason to believe" can be classified at a higher pedestal than mere suspicion and allegation . A perusal of the evidentiary material produced before the Court reveals that the petitioner has been saddled with the responsibility of raising a lalkara commanding his co-accused to kill Muham mad Noman alias Nomi (deceased) and thereafter the co-accused of the petitioner namely Raza and Tahir Hassan made firing at the person of Muhammad Noman alias Nomi (deceased), causing his death. It is not discernable from the perusal of the F.I.R. that the co-accused of the petitioner namely Raza and Tahir Hassan needed any command of the petitioner to actuate their intention of causing death of Muhammad Noman alias Nomi (deceased) as the said co-accused were duly armed and present at the place of occurrence whereas the petitioner was empty handed. It is not the prosecution case that the petitioner facilitated his co-accused in any manner at the time of occurrence. Such type of allegations are very easy to level but very difficult to prove. This narrative of the complainant has to be taken with a pinch of salt and has to be considered and evaluated, while keeping in mind that it may not be completely true or accurate. Prima-facie , when the petitioner did not make any attempt to cause any injury to the deceased, his role became distinguishable from those who had caused injuries to the deceased. The injuries resulting in the death of the deceased are not attributed to the petitioner , namely Younas Hassan.. I am in agreement with the learned Deputy District Public Prosecutor that deeper appreciation of the evidence at bail stage is not warranted under the law, but it is equally true that bail application cannot be decided in vacuum. The petitioner and his co-ac cused are related to each other and in that milieu spreading the net wide by the complainant party so as to falsely entangle the petitioner in the present criminal case appears to be a possibility which cannot safely be ruled out of the consideration at this stage.
The investigation of this case has already been finalized, a report under section 173 Cr.P.C. has been submitted and the physical custody of the petitioner is no longer required at this stage and his continued incarceration is not likely to serve any beneficial purpose. Prima facie there are reasonable grounds to believe that the case of the petitioner is requiring further inquiry and that it is yet to be seen whether he facilitated the main accused during the commission of the offence. It would be for the learned trial court to determine if the co-accused needed the facilitation of the petitioner at the time of commission of the offence. The question whether the petitioner is vicariously liable for the offences commit ted can only be determined by the learned trial court after holding of the trial. Reliance is placed on the case of "Qurban Ali Vs. State and others" (2017 SCMR 279) wherein the August Supreme Court of Pakistan held as under:- "The petitioner Qurban has not been attributed any overt act during the occurrence except the role of raising lalkara. In the circumstances of the case, it is for the learned trial Court to determine, after recording evidence pro and contra, whether the petitioner is vicariously liable for the acts of his co-accused. So far as the list of different criminal cases placed on record by the learned counsel for the complainant through C.M.A. No. 486-L of 2016 registered against the accused side in general and petitioner Qurban Ali in particular is concerned, suffice it to observe, at this stage, this Court is only seized of the instant bail application and the effect/impact of the aforesaid criminal record against petitioner and his co-accused is not relevant for disposing of the instant petition."
Reliance is also placed on the case of "Tariq Zia Vs. The State" (2003 SCMR 958) wherein the August Supreme Court of Pakistan held as under:- "The accusations against the petitioner in the F.I.R. are that he raised only a Lalkara to the effect that the enemy had come and on that. Lalkara other accused attacked the complainant side. The contents of the F.I.R. show that the accused was empty-handed and has not played any active/overt act in the commission of the offence. It would be for the trial Court to examine the evidence and determine the effect of the Lalkara raised by the petitioner . At this stage, we feel that prima facie, a case for grant of bail has been made out."
5. It has vehemently been argued by the learned Deputy District Public Prosecutor appearing on behalf of the State that the petitioner had remained a "Proclaimed Offender" for about six years after registration of this case and, thus, he is not entitled to the concession of bail. It is a settled law that in a case calling for further inquiry into the guilt of an accused person bail is to be allowed to him as of right and not by way of grace or concession and in such a case mere absconding of the relevant accused person may not be sufficient to refuse bail to him. A reference in this respect may be made to the cases of "Muhammad Sadiq v. Sadiq and others" (PLD 1985 SC 182), "Ibrahim v. Hayat Gul and others" (1985 SCMR 382) , "Qamar alias Mitho v. The State and others"
(PLD 2012 SC 222) and Atta Ullah v. The State through A.G. Khyber Pakhtunkhwa and another (2020 SCMR 451). Different persons have been differently created by ALLAH ALMIGHTY . Sometimes a person, instead of facing the situation/crises opts to go into hiding believing, that his period of desolation and distress may go by as the time would pass along. The world is not empty of the chivalrous either who show bravery , poise or courage to confront a most tempestuous and chaotic situation without having a second thought. It is merely the difference of vibes which makes the human beings behave and react peculiarly . There is, however , no denial to the fact that everyone fears the ire of the police, though in variant degrees. If one, despite being innocent, takes a decision out of fearfulness or anxiety to escape to a safer haven, the other one, also placed in identical situation, despite having certain reservations, may decide to bear the brunt of the upheavals in a virile way. The factum of abscondence, may not be a deciding factor , while deciding the bail plea of an accused. The attending circumstances of the case and a cautious study thereof would be relevant for decision of a bail application on the touchstone of further inquiry as contemplated under section 497(2), Cr.P.C. The element of abscondence must give way to the bail plea of an accused whose case categorically constitutes need for further inquiry .
6. For what has been discussed above, the case of the petitioner , namely Younas Hassan becomes one of further inquiry covered by subsection (2) of section 497, Cr.P.C. Liability of petitioner for the said offences would be determined by the learned trial court after sifting the evidentiary worth of the mate rial produced before the same.
Till then, case of the petitioner would be within the domain of section 497(2), Cr.P.C. calling for further inquiry into the petitioner 's guilt. The petitioner was arrested in this case on 05.04.2020, and since then he is behind the bars.
The investigation qua him is complete and his person is no more required for further investigation, therefore, his continued incarceration would not serve any beneficial purpose at this stage.
7. In view of above discussion, the petition in hand is accepted and the petitioner is admitted to post-arrest bail subject to his furnishing bail bonds in the sum of Rs.1,000,000/- (rupees one million only) with two sureties, each in the like amount, to the satisfaction of learned trial court.
8. Needless to mention that any observations made in the above order are tentative in nature and shall not influence the trial court. Additionally , a direction is issued to the learned trial court to conclude the trial of the case expeditiously , preferably within a period of four months from the receipt of copy of this order . It is made clear that if the petitioner or any person acting on his behalf causes delay in the conclusion of the trial then the trial court shall be at liberty to cancel the bail of the petitioner in accordance with law .