' The petitioner was reported against by Muhammad Khan son of Nazar Muhammad to Muhammad Zaman, Inspector/S.H.O. Who recorded his statement under section 154, Cr.P.C. And got registered case F.I.R. No,100/94 on 17-2-1994 at Police Station Kuthiala Sheikhan, District Mandi Bahauddin under sections 148, 302, 324/109/149, P.P.C. The petitioner was arrested in the case. His application for grant of bail before the Court of Session was heard and dismissed on 2-10-1994 by the Sessions Judge, Mandi Bahauddin. He has filed the present petition seeking the bail till the decision of the case.
2. It was alleged by Muhammad Khan son of Nazar Muhammad in his statement, made io the S.H.O.
That there was a Panchayat Ghar in Mauza Jholana. Muhammad Ashraf son of Lal Khan and his party wanted to illegally occupy the same. Aurang Zeb, his nephew, used to restrain Muhammad Ashraf etc. From occupying the said "Panchayat Ghar". On the day of occurrence at about 2-30 p.m. Muhammad Ashraf armed with rifle alongwith thirteen other co-accused including the present petitioner was allegedly armed with .7 mm rifle which the other co-accused were also armed with fire-arms came to the Panchayat Ghar. The complainant accompanied by Aurangzeb, Safdar Iqbal son of Lal Khan, his nephew Sikandar Hayat son of Ghulam Hussain and Saleh Muhammad son of Ghulam Qadir objected to their entering into possession. Ahmad Khan and Saee co-accused raised Lalkara that Aurangzeb etc. Should not be allowed to go alive whereupon Muhammad Ashraf fired his rifle at Aurangzeb hitting him on the right side of head. Aurangzeb fell down. Waqar fired at Safdar Iqbal hitting him on the left side of his head. Muhammad Yousaf, Bashir and Manzoor fired their respective guns at Sikandar Hayat hitting him on his right thigh, right ankle, right leg, left ankle, left leg and foot. Iftikhar Ahmad fired his gun hitting Saleh Muhammad on his right leg and right foot. They all fell down. Razaq, Ghulam Abbas, Muhammad Khan, Saee, Zafar Iqbal son of Lal, Ahmad, Zafar Iqbal petitioner and Muhammad Hayat fired their respective weapons at them but he escaped injury luckily. On their raising of alarm Ahmad Khan and Muhammad Ashraf came to the spot and witnessed the occurrence. It was further alleged that the accused had caused injuries to Aurangzeb, Safdar Iqbal, Sikandar Hayat and Salehoon at the abetment of Muhammad Mansha son of Bahadur Khan and Lal Khan son of Qaim, Lambardar and that they took the injured to Civil Hospital, Mandi Bahauddin and got them admitted. Aurangzeb died in the hospital as a result of injuries on his person. All the accused in the case were arrested.
Manzoor Ahmad and Muhammad Mansha were granted bail as they were found innocent by the Investigating Officer. Ahmad Khan co-accused was granted bail on 19-7-1994 on the ground that he had not used his weapon and Lalkara attributed to him as proverbial Lalkara.
3. It has been submitted by the learned counsel for the petitioner that the petitioner was alleged to be armed with rifle but no injury on the person of the deceased or to any of the injured P.Ws. Was attributed to him. The sole fatal injury on the person of Aurangzeb was attributed to Muhammad Ashraf co-accused whereas injuries on the person of Sikandar Hayat were attributed to Muhammad Yousaf, Bashir, Manzoor of whom Manzoor was found innocent by the Investigating Officer being not present at the spot and injury on the person of Salehoon P.W. Was attributed to Iftikhar. Rest of the accused were attributed ineffective firing and none was admittedly injured and that the case against the petitioner was open to further inquiry.
4. The learned counsel appearing on behalf of the complainant and the learned counsel for the State have opposed the application. It has been contended that the petitioner was named in the F.I.R. He was a member of an unlawful assembly and thus was vicariously liable. The rifle was recovered from him and there was sufficient evidence with the prosecution and that the petitioner was never declared innocent as in case of Manzoor.
5. The prosecution has thrown a wild net prima facie to rope in as many of their opponents in the occurrence as they could possibly do. On perusal of case file it was found out that even the occurrence, as stated in the F.I.R., was contested and the accused in the case offered to get Qassam Nian from the complainant or in the alternative were prepared to do the same. Qassam Nian is a custom and is always helpful in the investigation of the cases. Half truth and falsehood are often exposed in Panchayat and/or Qassam Nian and this custom is prevalent in Punjab since time immemorial. The custom has the force of and protection by law. This Court cannot ignore the custom even if it does not find any mention in the Police Act or Police Rules. Rather it is always helpful for the Investigating Officer to arrive at a correct conclusion on bona fide application of mind.
6. In the present case the possession of the alleged "Panchayat Ghar" was also disputed and was allegedly the property of Lal, Lambardar and this fact was brought to the notice of the Investigating Officer. Two of the accused persons one of whom, namely Manzoor had allegedly caused injuries was declared innocent subsequently. D.S.P./S.D.P.O. Brought all the facts on the file and then, for unknown reasons, failed to give his very definite opinion on the question of ownership of the alleged "Panchayat Ghar", mode of occurrence, the places of the presence of the alleged occurrence at the time of occurrence and the counter-version. However, all these facts when taken together, and without prejudice to the merits of the case, make the case of the present petitioner open to further inquiry.
7. The question of vicarious liability was, in the circumstances of the case, to be determined after recording of the evidence by the trial Court and the petitioner who was allegedly present at the spot and armed with a rifle and had also allegedly fired without causing any injury to the deceased or to any other witness is still to stand trial. The fact that six of the accused were named as armed but having not caused any injury decidedly requires the tentative indulgence of the Court. Reliance is placed on Sultan Ahmad etc. v. The State 1981 SCM R 771, Ghulam Hussain v. Abdul Karim 1987 PCr.LJ 271 and Abdul Majeed v. The State 1986 PCr.LJ 1968.
8. In view of the above there are not reasonable grounds for believing that the accused petitioner had committed the offence alleged but that there were sufficient grounds for further inquiry into his guilt. Accordingly the petition is allowed. The petitioner is granted bail in the sum of Rs,50,000 with one surety in the like amount to the satisfaction of A.C./Duty Magistrate, Mandi Bahauddin.