' On 24-9-1994 at Police Station Shalimar, Lahore a case under section 302/34, P.P.C. Was registered against Ijaz Ahmad, his brother Fayyaz Ahmad and cousin Bashir Ahmad accused at the instance of Maqbool Ahmad complainant. It was alleged that Abbas Ali deceased, the brother of the complainant objected to the sitting of the aforementioned three accused in the street where their house was situated because it was causing inconvenience to the ladies. An altercation took place and then Fayyaz accused raised a Lalkara exhorting his brother Ijaz Ahmad to teach Abbas Ali deceased a lesson for objecting to their sitting in the street. Thereafter, Fayyaz Ahmad and Bashir Ahmad accused took the deceased into Japha. Ijaz Ahmad accused took out a Chhuri from the Nefa of his Shalwar and inflicted a blow on the right flank of the deceased. On receiving the said injury the deceased fell down. The complainant raised alarm on which the residents of the Mohallah were attracted to the spot, on seeing whom the accused ran away. The deceased was taken to the hospital in injured state where he succumbed to his injury.
2, Bashir Ahmad and Fayyaz accused, petitioners herein, who were arrested on 3-10-1994, have applied for their bail.
3. I have heard the parties' learned counsel and have also gone through the record.
4. Learned counsel for the petitioners has contended that the petitioners had been falsely implicated due to their relationship with the main accused Ijaz, that they were empty-handed and no injury had been attributed to them, that the only allegation against them was that Fayyaz had raised a Lalkara and then he alongwith Bashir Ahmad petitioner had taken the deceased into a Japha, that it was impossible for Ijaz accused to inflict a Chhuri blow on the flank of the deceased if the petitioners were holding him in Japha, that there was no motive or premeditation and that they could not be held vicariously liable for the murder of the deceased because they did not know that their co-accused Ijaz was carrying a Chhuri in the Nefa of his Shalwar. In support of his contentions he has cited Muhammad Haroon and another v. The State 1994. SCMR 2161, Sarwar v. The State 1986 PCr.LJ 2173 (Lahore) and Muhammad Hussain and another v. The State 1988 PCr.LJ 1945 (Lahore). In all these cases bail was granted to accused against whom allegations of Lalkara and Japha had been raised.
5. On the other hand the learned counsel for the State and that of the complainant opposed the bail application and maintained that since the petitioners had taken active part in the occurrence they were vicariously liable for the murder of the deceased and thus were not entitled to the concession of bail. In this connection reliance was placed on Shabbir Ahmad v. The State PLD 1977 Lah. 201, Mst. Barkat Bibi v. Gulzar and another 1979 SCM R 65 and Jhanda v. The State PLD 1990 Pesh.
166. In the aforesaid cases bail was refused to the accused against whom there was an allegation of Japha.
6. In my view the facts of the cases on which the learned' counsel for the petitioners has relied are almost similar to the facts of the present case. No injury is attributed to the petitioners. The allegation against them is that one of them had raised Lalkara and then both of them had taken the deceased into a Japha. It would be for the trial Court to determine if Ijaz accused could inflict fatal injury on the deceased if the petitioners were holding him in Japha. The question whether the petitioners had the knowledge that their co-accused Ijaz was carrying a Chhuri in-the Nefa of his Shalwar would also require serious consideration at the time of trial. In this view of the matter I am of the opinion that this case requires further inquiry. I, therefore, admit the petitioners Bashir Ahmad and Fayyaz to bail in the sum of Rs,30,000 each with one surety in the like amount to the satisfaction of A.C./Ilaqa Magistrate, Lahore Cantt.