ORDERNAZIR AHMED CHAUDHARY, J.- This order shall dispose of Cr.M. 5084- B-94 and Cr.M. 5043-B- 94 since both the petitioners are named co-accused in F.I A- No. 409/94 registered with Police Station Peoples Colony, Faisalabad, on 9.9.1994 under sections 302/452/34 PPC for the murder of Irfan.
2. The facts as disclosed in the F.I.R, registered at the instance of Ali Asghar, complainant are to the effect that the sister of complainant and deceased Irfan, Mst Shakila Bibi, was married to Asif accused for years before the occurrence and one child Wasim aged 8/9 months was born out of the wedlock. Mst Shakila quarrelled with her husband and came to the house of the complainant and his brother. At about 12 noon on the day of occurrence Asif came to the house of the complainant and the deceased asking that Mst Shakila be sent back with him. Due to sickness of Shakila the complainant declined on which quarrel ensued. Asif snatched the infant Wasim and went back. He returned at about 330 pm along with his father Qais and his cousin Ijaz, the two applicants in these bail applications. All the three tried to take away Mst Shakila but the complainant and his brother Irfan, their mother Mst Mukhtar and their unde Ikram resisted. There was a scuffle between the parties. Asif tried to drag away Shakila. Irfan deceased tried to intervene on which Ijaz petitioner raised a Lalkara to Asif that he should teach a lesson to Irfan Qais petitioner took Irfan in a fold (Jappha) while Asif pulled out pistol and fired at Irfan which hit him on his left side of the head and passed through to exit from the right side. Irfan succumbed to his injuries at the spot.
3. Learned counsel for the petitioners argued that all the accused are inter-related and they had gone to the house of the complainant to ask for the return of were of Asif co-accused with no intention of taking her away by force or to murder the deceased. Asif had gone to request return of Shakila and when he did not return for some time the two petitioners went after him to the house of the complainant to bring him back and to intercede in the return of Shakila and as such there was no shared intention of trespassing into the house of the complainant and the deceased and to murder Irfan deceased nor was it within the knowledge of the petitioners that Asif had armed himself with pistol and even from the contents of the F.I.R, it is clear that Ijaz has been attributed proverbial Lalkara while Qais, who is father of the accused Asif, is attributed japhha to Irfan. He contended that if Qais had taken Irfan in his japhha he was likely to be injured himself. He further argued that S.P.CIA had investigated the case and had held that japhha and Lalkara are doubtful and that the two co-accused having only followed Asif who hit the deceased with fatal shot on sudden flare up, they are not directly implicated in the case.
4. Learned counsel for the State has argued that the petitioners are nominated in the FJ.R.; they are attributed specific rule; they had gone there with common intention and had murdered Irfan who was a student of 16 years of age; the challan has been completed; petitioners have been under arrest for less than three months and no case is made out for grant of bail to the petitioners.
Learned counsel for the complainant argued that the presence of the petitioners on the scene of occurrence is not disputed; the occurrence took place in two parts; the first at 12.00 O'clock when Asif went alone to get his were and snatched infant Wasim and took him away and the second when all the three accused went to the house of the complainant with common intention to take away Mst Shakila by force and to avenge the insults given to Asif during the earlier occurrence when allegedly he had been abused by the complainant and his bqpther Irfan and as such there was common intentitin Of all the three to murder the deceased. Learned counsel dtejl Haq Nawaz Vs. State (PLJ 1988 Cr.C.(Lah 11), Muhammad Mushtaq Vs. State (1994 P.Cr.LJ. 1456) wad Abdul Majeed Vs. State (1992 P.Cr.LJ. 2597) in support of his arguments.
5. I have heard the learned counsel for the parties as well as the learned counsel for the State, and the Investigating Officer. It appears from the narration in the F.I.R, itself that the visit of all the three co-accused to the house of the complainant and his brother was for die purpose of requesting return of Shakila, were of Asif, who had gone away after a minor dispute a few days earlier. In such circumstance it is doubtful whether the present petitioners were aware that Asif accused was armed with a pistol or that they shared common intention to murder Irfan, younger brother of Shakila. Hie case appears to be one of further inquiry regarding common intendon, attributed to the petitioners who have been ascribed proverbial lalkara and japhhaJTbe judgments cited by the learned counsel for the complainant are of no avail to him as every case proceeds on its on facts.
6. In view of the above the petitioners are allowed bail subject to their furnishing bail bonds in the sum of Rs.50,000/ (fifty thousand) each with two sureties each in the like amount tb the satisfaction of the trial Court. However, the trial Court will be entitled to cancel the bail granted to the petitioners if it is found that they are abusing the concession granted to them.