' Muhammad Arif Hussain petitioner alongwith his ten co-accused is facing trial in case F.I.R.
No,1093 dated 23-8-1997 registered at Police Station Sadar, Sheikhupura for offences under section 302/324/395/148/149, P.P.C. Lodged by Muhammad Anwaar complainant. The occurrence in this case took place on 23-8-1997 at about 6-15 p.m. At an open place in village Kalokey within the area of Police Station Sadar, Shaikhupura and allegedly on the basis of an assault launched by the nominated accused persons Imtiaz Ahmad lost his life and Zulfiqar Ali P.W. Sustained injuries during the same. The role attributed to the petitioner in the said F.I.R. Is that he, while armed with a shot- gun, fired at Zulfiqar Ali P.W. Hitting him on his left leg. The Doctor who medically examined the said injured P.W. Had declared the said injury attributed to the petitioner to be simple in nature. The petitioner was arrested by the local police in connection with this case on 4-11-1997 whereafter the petitioner applied for his bail after arrest before the learned trial Court but the same was dismissed vide order dated 6-4-1998 passed by the learned Additional Sessions Judge, Sheikhpupura. Hence, the present petition before this Court.
2. It was been contended by the learned counsel for the petitioner that the petitioner is not attributed any injury to the deceased and only a simple injury to a prosecution witness has been attributed to him. He has further argued that the petitioner was not involved in the motive incident taking place in the morning of the day of occurrence. It has further been argued that D.S.P. Shahid Ahmad has given a finding that the petitioner was present at the spot during the incident but he had not fired at anybody. He has further maintained that the challan in this case has already been submitted and the petitioner is no longer required for the purposes of investigation. It has, therefore, been argued by him that the case of the petitioner calls for further inquiry and the petitioner is entitled to be admitted to bail on that score. As against that the learned counsel for the State has maintained that the petitioner has been nominated in the F.I.R. And a specific role has been attributed to him during the occurrence. He has argued that the petitioner was a member of an unlawful assembly and that his involvement during the occurrence has been established during the investigation conducted by the local police. He has further argued that in the challan submitted before the learned trial Court the petitioner has been placed in column No,3. The learned counsel for the State has been very ably assisted by the learned counsel for the complainant in this case who has submitted before me that the F.I.R. In this case was lodged promptly; that three eye- witnesses have consistently implicated the petitioner in the incident in question; that the assault mounted by the accused party was a premeditated one and, therefore, apart from his own role during the incident the petitioner is also vicariously liable for all the acts of his co-accused during the incident.
3. The learned counsel for the complainant has also vehemently argued that the offence allegedly committed by the petitioner attracts the prohibitory clause of subsection (1) of section 497, Cr.P.C.
And in such cases refusal of bail is a rule and its grant is an exception. It has further been pointed out by the learned counsel for the complainant that the trial is about to commence and a date for recording the evidence of prosecution witnesses has already been fixed before the learned trial Court in that regard. The learned counsel for the State and the learned counsel for the complainant have, thus, seriously opposed the grant of bail to the petitioner.
4. After hearing the learned counsel for the parties and going through the record I find that certain facts in this case stand out to be noticed. It is not disputed that the petitioner did not take part in the incident of motive in the morning of the day of occurrence. It is also the prosecution's own case that the petitioner did not cause any injury to the deceased during the incident in question. It is again undeniably the prosecution's own case that the petitioner caused one injury on the leg of Zulfiqar Ali P.W. Which injury was declared to be simple in nature by the Doctor. The learned counsel for the petitioner maintains that the said injury attracts the provisions of section 337-A(i), P.P.C.
Carrying a maximum sentence of two years' R.I. Whereas the learned counsel for the complainant has submitted that the said injury attracts the provisions of section 337-F(ii), P.P.C. Carrying a maximum sentence of 3 years' R.I. It is also not disputed before me that in the last investigation conducted by D.S.P Shahid Ahmad it was concluded by the said Investigating Officer that the petitioner was present at the spot during the incident but he had not fired at anybody during the entire incident. In the present case, on the one hand, there are three eye- witnesses who stand by the allegations contained in the F.I.R. Whereas on the other hand,' the Investigating Agency has concluded otherwise, especially to the extent of the petitioner. In the wake of the opinion of the Investigating Officer being adverse to the prosecution case, a question whether the petitioner is to be held vicariously liable for the injury caused to the deceased by his co-accused will be a question to be ultimately decided by the learned trial Court after recording the evidence produced before it. It will not be out of place to mention here that the challan in this case has already been submitted and the trial of the petitioner has already been set down for commencement. It is settled law that in a case calling for further inquiry within the scope of the provisions of section 497(2), Cr.P.C. An accused person is entitled to bail as a matter of right and such a right cannot be denied to him on the ground that his trial is either likely to commence shortly or has already commenced. Reliance in this respect is placed on Muhammad Ismail v. Muhammad Rafique and another (PLD 1989 SC 585).
For what has been observed above, I am satisfied that the case of the petitioner requires further inquiry attracting the provisions of section 497(2), Cr.P.C. And, therefore, the present petition is accepted and the petitioner is admitted to bail in the sum of Rs,50,000 (rupees fifty thousand only) with two sureties in the like amount to the satisfaction of the learned trial Court.