' Petitioners Muhammad Mansha and Rab Nawaz have sought bail after arrest in a case registered against them and 5 others vide F.I.R. No,255/94, dated 13-12-1994 under section 302/109/148/149, P.
P.0 . At Police Station Sahuka, District Vehari on the complaint of Altaf Hussain brother of Nazir Ahmad deceased. It is alleged in the F.I.R. That petitioners Muhammad Mansha and Rab Nawaz armed with rifles and their co-accused Muhammad Yasin armed with .12 bore gun; Muhammad Amin alias Kali armed with Sota and Muhammad Shahbaz armed with rifle launched murderous assault on 13-12-1994 at 4-45 p.m. On Nazir Ahmad and Falik Sher with their respective weapons in the area of Chak No,33/KB. The case of the prosecution is that Rab Nawaz raised Lalkara that Nazir Ahmad should be taught a lesson for divorcing the sister of Shahbaz accused. Thereafter Muhammad Shahbaz, Muhammad Mansha and Rab Nawaz inflicted blows with the butts of their fire-arms and Muhammad Amin with his Sota on the person of Nazir Ahmad. And Falik Sher. P. Ws.
Were attracted on the alarm raised by them and saw that Nazir Ahmad was lying on the ground and within their view Muhammad Yasin fired with his .12 bore gun which hit on the belly of Nazir Ahmad. The accused decamped from the place of occurrence on a tractor while firing. Nazir Ahmad died at the spot and Falik Sher was taken to Civil Hospital, Burewala in an injured condition.
The motive as stated was that Nazir Ahmad deceased had divorced the sister of Muhammad Shahbaz co-accused and on account of the said grievance the accused had committed the offence in question. According to the complainant, Sharif and Ali Muhammad accused abetted the offence. The petitioners were arrested in this case on 21-1-1995. Their bail petition was rejected by the learned Additional Sessions Judge, Burewala on 27-9-1995, hence this petition.
2. Learned counsel for the petitioners has argued that different Police Officers have investigated this case and found that the petitioners at the time of occurrence were present in their field empty- handed and did not cause any injury to any one. It has also been found during the investigation that they reached the place of occurrence on hearing the commotions and that no specific injury has been attributed to the petitioners and the facts of the case require some amount .Of further enquiry to connect the petitioners with the commission of offence. He further argued that no weapon of offence has been recovered from the. Petitioners.
3. Learned State Counsel argued that the petitioners are named in the promptly registered F.I.R.
They were found present at the spot during the occurrence. He further submitted that the petitioners are vicariously liable being the members of unlawful assembly.
4. I have heard the learned counsel for the parties and have gone through the record with care.
5. S.-I., S.H.O. Police Station Sahuka vide his Zimni, dated 31-1-1995 opined that Muhammad Mansha and Rab Nawaz were present at a distance of one acre from the place of occurrence and they were not carrying any fire-arm at the time of occurrence. D.S.P. Burewala on 9-2-1995 came to the conclusion that Rab Nawaz and Muhammad Mansha were present at a distance of less than an acre from the place of occurrence and they could be held responsible for the present occurrence because the persons standing nearby some time can provide help to the actual assailants. He, however, left the matter to be finally decided by the Court. Final report under section 173, Cr.P.C.
Was prepared by Muhammad Ashfaq, S.-I., S.H.O., Police Station Sahuka who in his Zimni dated 23- 2-1995 recorded that there exists grave party faction amongst the complainant and the accused party. According to his investigation petitioners Rab Nawaz and Muhammad Mansha were present at a distance of one acre from the place of occurrence in their own field. Muhammad Mansha was spreading fertilizer and Rab Nawaz was ploughing the tractor in the field. According to this Investigating Officer both were not armed with any fire-arm weapon. Then again the D.I.-G., Multan Range, transferred the investigation to Muhammad Latif, D.S.P., Range Crime Branch, Multan vide his order dated 20-3-1995. After thorough investigation vide his Zimni, dated 4-9-1995, the D.S.P., Range Crime Branch opined that Muhammad Yasin, Muhammad Amin and Shahbaz Ahmad co- accused were working in their wheat crop field. Nazir Ahmad deceased and Falik Sher came there and stopped them from working on the joint Wat which resulted into a quarrel and Shahbaz, Muhammad Amin caused injuries with their Sotas and Muhammad Yasin fired at Nazir Ahmad with his .12 bore gun and meanwhile Muhammad Mansha and Rab Nawaz petitioners had also reached at the place of occurrence who were cultivating wheat in the nearby field. All the Investigating Officers are unanimous that the petitioners were not armed at the time of occurrence and have not caused any injury to any one. Mere arrival of the petitioners at the scene of occurrence would not make them liable for the acts of the other accused. On the own showing of the prosecution the petitioners did not use their fire-arm weapons but role of collective infliction of injuries with the butts of rifles is attributed to them. According to the post-mortem report cause of death was the fire-arm injury which was individually sufficient to cause death. No weapon of offence was recovered during the investigation on the potation of the petitioners. All these factors when considered collectively would make a case of further enquiry. It A cannot be said with certainty if the petitioners have committed a non-boilable offence and their case falls within the exception provided under section 497,1 Cr.P.C.
' For what has been stated above, the petitioners are allowed bail provided they furnished personal security in the sum of Rs,50,000 each with two sureties each in the like amount to the satisfaction of A.C./Duty Magistrate, Burewala.
' All the observations made above are tentative in nature and will have no bearing at the stage of trial. The learned trial Judge will form his own opinion on the basis of evidence produced before him.