1. ' Applicant seeks pre-arrest bail in Crime No,1 of 1998 of Police Station Kot Ghulam Muhammad registered under section 302/337-A(i)/337-F(i)/147/ 148/149, P.P.C.
2. ' Briefly the facts of the case of prosecution as narrated by the complainant Abdul Razzak in the F.I.R. Are that he is Hari and used to reside in Village Sakarpari along with his children. He has four brothers, namely, Abdullah, Abdul Qayoom, Ilyas and Abdul Rahman. His elder brother Abdullah was on friendly terms with co-accused Farman Ali and used to say that he has married with Mst.
3. Shahida daughter of Farman Ali but according to Farman Ali she was married with the applicant.
4. Complainant's case further is that co accused Farman Ali and his sons were annoyed with deceased Abdullah over that matter and on 2-1-1998 in the evening hours when complainant, his brother Abdullah, Abdul Qayoom and cousin Sanaullah had gone to their turn of water and when arrived at Diyal Garh water course at about 10-00 p.m. They saw on the torch light applicant with gun, co-accused Mustafa with country made pistol, Farman Ali, Liaquat Ali and six others unidentified persons with Lathies standing. Meanwhile co-accused Mustafa challenged Abdullah that he will not be spared as he has given bad name to them and thereafter co-accused Farman Ali, Liaquat Ali and other unidentified culprits inflicted Lathe blows to deceased Abdullah and P.W.
5. Qayoom on head and other parts of the body. Deceased Abdullah in order to save him attempted to run away but co-accused Mustafa fired at him from the pistol which hit him on the left side of his back and fell down. Applicant and the other accused decamped after hurling them abuses: Injured Abdullah expired at about 3-00 a.m. On 3-1-1998 while being shifted to Mirpurkhas.
6. ' It is contended by Mr. Qurban Ali H. Chohan, on behalf of the applicant that there is a delay of 7-1/2 hours in reporting the matter to the police as such the possibility of consultation and deliberation to implicate the applicant cannot be ruled out. He further argued that the applicant has been implicated in this case by the complainant malafidely and with ulterior motives because of the reason that he had married Mst. Shahida Bibi said to be the wife of deceased Abdullah. According to learned counsel if applicant had any intention to cause death of deceased Abdullah or to inflict injuries to the complainant party he would have fired at them as he was armed with gun., His non- participation in the commission of offence shows that he was not present at the time of incident but has been nominated in the F.I.R. In order to take revenge of their failure to get the hand of said Mst. Shahida Bibi. He lastly submitted that due to non-participation in the commission of offence applicant cannot be saddled with common intention or common object of committing the death of deceased Abdullah which cannot he considered at the time of bail but can only be considered after the evidence is recorded. In support he placed reliance on the cases reported PLD 1989 SC 347, State v. Mukhtar Ahmed Awan 1991 SCM R 322, 1997 SCMR 1237, 1986 SCM R 1654 and 1996 PCr.LJ 1594 and 1422.
7. ' On the other hand Ch. Abdul Jabbar, counsel for the complainant vehemently opposed the contentions of applicant's counsel and argued that though applicant is not attributed specific role in the commission of offence yet he is vicariously liable for the same as he had come alongwith co-accused being armed with gun. According to him applicant is the main accused who happened to have married with Mst. Shahida Bibi, the bone of contention of this case. In support he placed reliance on the cases reported as 1988 SCM R 281, 1996 SCM R 1023 and PLD 1997 SC 397.
8. ' Mr. Ashiq Hussain, learned counsel appearing for the State supported the arguments of applicant's counsel and did not oppose the confirmation of bail, to the applicant mainly for the reasons that he being the husband of Mst. Shahida Bibi did not participate in the commission of offence and no overt act of any sort was attributed to him though he was armed with gun.
9. I have given anxious thought to the contentions raised at Bar. According to F.I.R. No overt act of any sort is attributed to applicant who is said to be armed with gun and there was nobody to prevent him from firing at the deceased or complainant party if he had any intention to do so. The fact that he being the husband of Mst. Shahida who was being claimed as wife of the deceased, would have been the first person to attack upon the complainant party. His not doing so supports the contention of applicant's counsel that the possibility that the applicant has been falsely involved in this case because of the reason that he succeeded in getting Mst. Shahida Bibi married.
10. Irrespective of the above all sons of co-accused Farman Ali including the applicant, his son-in-law have been involved in this case. Honourable Supreme Court in the case of Miran Bux v. The State and another PLD 1989 SC 347 granted pre-arrest bail to the applicant irrespective of the considerations, firstly that he fired at the deceased on non-vital part of the body viz. Leg and secondly that complainant had involved all members of his family in the case. Honorable Supreme Court in the case of State v. Mukhtar Ahmed Awan 1991 SCM R 322 laid down the rule that it is not absolute that a fugitive of law under no circumstances be enlarged on bail, although ascendance constitute relevant factor while examining question of bail. This Court in the case of. J.M. Sardar v.
11. The State (sic) granted pre-arrest bail to the applicants who had simply asked the accused to kill the deceased in order to save him from unnecessary harassment in the case instituted against them with ulterior motive.
12. ' The cases referred to by complainant's counsel has no relevancy with the case of the applicant as they are on bail after arrest and their facts are different to the present case.
13. In the light of the circumstances as discussed above, it would not be proper to deprive the applicant from getting his pre-arrest bail confirmed. Accordingly, I confirm the interim pre-arrest bail granted to the applicant on 12-3-1998 on same terms and conditions.
14. Pre-arrest .