Through this petition under Section 497, Cr.P.C., the petitioner namely Zafar Iqbal seeks post-arrest bail in case FIR No. 523 of 2019, dated 30.06.2019, registered at Police Station New Multah, District Multan, in respect of offences under Sections 302 324 337-A(i ), 337-A(ii), 337-A(iii), 311, 336-B, 337-F (i), 337-L(2), 148 and 149, PPC and Section 7 of the Anti-T errorism Act, 1997.
2. The allegation as against the, petitioner namely Zafar Iqbal culled from the evidentiary material available before the Court, is that the petitioner along with his, co-accused, while armed, attacked the complainant party and the petitioner namely Zafar Iqbal gave a blow of piece of brick on the person of Ali Raza (the complainant of the case) hiring him on his head. According to the prosecution case the co-accused of the petitioner namely Muhammad Ajmal and Muhammad Ashmal, fired on the persons of Mst. Kiran, Mst. Maira, Mst. Naeema Bibi, Muhammad Abid, Saim Massan, Roma Bibi, Saima Bibi, Asima Bibi and Tasleem Bibi (deceased) resulting in their deaths.
3. I have hand the learned counsels for the parties, the learned Deputy Prosecutor General and perused the record with their able assistance.
4 As per the case of the prosecution, the specific allegation as against the petitioner is that the petitioner namely Zafar Iqbal gave a blow of piece of brick on the person of Ali Raza (the complainant of the case) hitting him on head. The occurrence took place on 30.06.2019 at about 9.00 p.m whereas the injured namely Ali Raza, complainant of the FIR, appeared before the Medical Officer and got himself examined on 1.7.2019 at about 12.49 a.m. (night time). The Court has perused the record, and has observed that as per the medico legal examination certificate issued with respect to the examination of Ali Raza, complainant of the FIR, the Medical Officer declared the injury attributed to the petitioner of the kind of Shajjah-i-Mudihah , made punishable. under Section 337-A(ii), PPC. The offence made punishable under . Section 337-A(ii), PPC is punishable with a maximum term of five years of imprisonment as Tazir. According to the prosecution case it was the co-accused of the petitioner namely Muhammad Ajmal and Muhammad Ashmal, both sons of the petitioner , who gave injuries on the persons of Mst.
Kiran, Mst. Maira, Mst. Naeema Bibi,. Muhammad Abid, Saim Hassan, Roma Bibi, Saima Bibi, Asima Bibi and Tasleem Bibi (deceased) resulting in their deaths. Learned counsel for the complainant/Respondent No. 2 has submitted that the petitioner , after the occurrence, also raised a lalkara that Waheed-ur-Rehman (a prosecution witness) be done to death as he was reporting the matter , to the police and on the basis of the said command, the co-accused of the petitioner namely Muhammad Ajmal and Muhammad Ashmal, also injured the said Waheed-ur- Rehman. Prima-facie, when the petitioner did not make any attempt to cause any injury to any of the deceased, his role of causing an injury to the prosecution witnesses became distinguishable from those who had caused injuries to the deceased. The injuries resulting in the deaths of the deceased are not attributed to the petitioner . There is no detail of the motive or the manner in which the petitioner was related to the said motive mentioned in the FIR. In that milieu, spreading the net wide, by the complainant party so as to falsely entang le the petitioner , who is the real father of his co-accused namely Muhamm ad Ajmal and Muhammad Ashmal, in the present criminal case appears to be a possibility which cannot safely be ruled out of the consideration at this stage. The co-accused of the petitioner namely Mst. Mosarrat alias Farhat and Mst. Anila Nawaz, who were saddled with the responsibility of bringing two bottles of petrol at the place of occurrence, have also been admitted to post-arrest bail by the learned trial Court vide its order dated 27.8.2019 and 16.08.2019. The said orders have neither been challenged by the complainant nor the State and .are still holding the field. The vicarious liability of the said co-accused of the petitioner namely Mst. Mosarrat alias Farhat and Mst. Anila Nawaz and the petitioner shall be determined the learned trial Court after recording of evidence. The august Supreme Court of Pakistan in the case of "Husnain Mustafa v . The State and another" (2019 SCMR 1914 ) has held as under: "Horrors of an heinous crime cannot impede release of accused on bail, if otherwise his guilt called for further probe nor bail can be withheld as a strategy for punishment. ".
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 ease of the petitioner is one of further inquiry and that it is yet to be seen whether he facilitated the main accused during the commission of the offence in any manner . It would be for the learned trial Court to determine if the co-accused of the petitioner 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 committed can only be determined by the learned trial Court after holding of the trial. Reliance is placed on the cases of "Faqir Hussain alias Bali vs. The State and others" (2014 SCMR 1502 ),"Farzand Ali vs. Taj and two others" (2000 SCMR 1854 ),"Mumtaz Hussain and 5 others vs. The State" ( 1996 SCMR 1 125) and Wajid Ali versus The State and another" ( 2017 SCMR 1 16).
5. For what has been discussed above, the case of the petitioner becomes one of further inquiry covered by sub- section (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 material 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 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. 800,000/- (rupees eight hundred thousand only) with two sureties, each in the like amount, to the satisfaction of learned trial Court.
6. 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 three 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 .