' The petitioners through this petition filed under section 497, Cr.P.C. Seek post-arrest bail in case F.I.R. 23/95, dated 9-2-1995 under section 324/34, P.P.C. Registered with Police Station, Saddar Shujabad District Multan at the instance of Abdul Hameed. The injured Muhammad Ahmed expired, due to the injuries as he had sustained, in the hospital and the offence under section 302, P.P.C.
Was added stately on 9-2-1995.
2. The post-arrest bail of the petitioners was declined vide order, dated 18-6-1995 passed by the learned Sessions Judge, Multan.
3. The prosecution case, in brief, is that on 8-2-1995 at about 4-30 p.m. The complainant alongwith Khuda Bakhsh, Muhammad Iqbal and Muhammad Ahmed after offering the prayer, was coming back to their home and when they reached in front of the tube-well of Faiz Muhammad Dogar, all of a sudden, Faiz Muhammad armed with .12 bore gun, Muhammad Hanif and Liaquat Hussain armed with Burcha came ahead. Muhammad Hanif exhorted and Faiz Muhammad fired a shot at the complainant which missed and the second shot was fired which struck on the head and right shoulder of Muhammad Ahmed, deceased, who fell on the ground and became unconscious.
Muhammad Ahmed was taken to Shujabad Hospital and on the advice of the doctor he was shifted to Nishtar Hospital, Multan, who thereafter, expired.
4. The learned counsel for the petitioners has vehemently argued his case that the fire which hit Muhammad Ahmed, deceased, was, according to the F.I.R. Attributed to Faiz Muhammad, who was armed with .12 bore gun, Muhammad Hanif and Liaquat Ali, who are real brothers and son of Faiz Muhammad respectively, were stately armed with Burcha but no overt act was attributed to them.
He very impetuously argued that mere presence of the petitioners at the place of occurrence does not constitute any offence. They were arrested on 19-2-1995, the challan has also been submitted in the Court and the petitioners are no more required for the purpose of In estimation. He further argued that had the petitioners been present there in furtherance of their common intention to kill Muhammad Ahmed, they would have caused injuries to him with their respective weapons. Only one shot was fired and that too by Faiz Muhammad and the fire was also not repeated, which makes it obvious that this fight took place at the spur of the moment and it was not pre-meditated.
Whether the petitioners were present, armed with their respective weapons, at the spot or not, in the absence of attribution of. Any overt act, is yet to be established by recording the evidence at the trial? Mere attribution of Lalkara does not grant a certificate of participation in the occurrence or to facilitate the commission of offence. The learned counsel for the petitioners, in support of his contentions, has relied upon Abdul Aziz v. Bashir Ahmed PLD 1966 SC 658, Muhammad Yaqub v. The State 1971 PCr.LJ 106, Muhammad Sharif v. The State 1974 SCM R 160, Zahoor Ahmed v. The State and another 1979 SCM R 448.
5. On the other hand, the learned counsel for the State as well as the learned counsel for the complainant vehemently controverted the contentions raised by the learned counsel for the petitioners.
6. At the very outset of the arguments, the learned counsel for the complainant made it clear that on the point of Lalkara the authority as given Abdul Aziz v. Bashir Ahmed PLD 1966 SC 658 was overruled vide judgment reported as Chiragh Din and others v. The State PLD 1967 SC 340.
Vehemently argued that Lalkara, if raised at the place of occurrence by one of the co-accused, is to be seen in the circumstances of the case. Some time it becomes supportive to facilitate the commission of offence and sometimes it leaves no ' effect upon the occurrence. He very impetuously argued that keeping in view the circumstances of the instant case, had Muhammad Hanif not raised Lalkara, Faiz Muhammad would have not fired at Muhammad Ahmed, deceased. He in support of his contentions relied upon Nazar Muhammad v. The State and another PLD 1978 SC 236, Munawar v. The State 1981 SCM R 1092 and Mubarik Shah v. The State 1986 SCM R 1681.
7. The second leg of the argument of the learned counsel for the complainant is that there were as many as four cases registered against Faiz Muhammad and Muhammad Hanif, who collectively, committed the crimes and in two cases Liaquat son of Faiz Muhammad was also involved. In this view of the matter, he has stressed that if the accused are allowed bail, they shall definitely repeat the offence so the petitioners are not entitled to have any discretionary relief.
8. I have heard the learned counsel for the respective parties at full length and have also perused the record very minutely.
9. Admittedly, the petitioners did not cause any injury to the deceased or the witnesses, who were statedly also present at the spot. The role of Lalkara raised by Muhammad Hanif, in the circumstances of the case, is yet to be established. The fact as to whether Muhammad Hanif was present at the spot or not cannot be ascertained at this stage, unless the evidence is recorded at the time of the trial. So far Liaquat Ali is concerned, neither he raised any Lalkara nor he has participated in the alleged occurrence as his presence at the spot has not been established.
However, the police after the finalization of the investigation, has submitted the challan in the trial Court against all the three persons. Even if the petitioners were present at the spot armed with respective weapons, no overt act has been attributed to them, particularly when Faiz Muhammad, the principle accused had not repeated the fire.
10. Without going into the intricacies of law and commenting upon the merits of the case so that it may not prejudice the case of either party, prima facie, I feel that the instant case requires further inquiry regarding the involvement of the petitioners which can only be established during the trial which has not yet commenced. The case of the petitioners clearly falls within the purview of subsection (2) of section 497, Cr.P.C. Even otherwise, the petitioners are no more required for the purpose of investigation and no useful purpose shall be served while keeping them in the judicial lock-up for an indefinite period.
11. In view of what has been discussed above and in view of the circumstances of the case, I am fully pursuaded to admit the petitioners to bail provided they furnish bail bonds in the sum of Rs,1,00,000 (Rupees one lac) each with one surety each in the like amount to the satisfaction of A.C./Duty Magistrate, Multan.