' SH. RIAZ AHMED, J.---The petitioner seeks leave to appeal against the order delivered by a Division Bench of the Lahore High Court dated 29-7-1998 whereby a learned Judge of the Lahore High Court allowed bail to respondent Muhammad Usman Malik against whom initially a case under section 324/34, P.P.C. Was registered, but was later on converted into one under section 302, P.P.C. For having committed the murder of Abid Mohsin deceased.
2. The prosecution case as disclosed in the F.I.R. Was that on 18-3-1998 at about 5.00 p.m. Abid Mohsin deceased was standing outside his house alongwith his friend Haider Shah. At that time, Raja son of Sufi Akram resident of Babar Block passed that way in a motor car bearing Karachi registration number at a very high speed playing music deck of the car at a high volume.
Deceased Abid. Mohsin told Raja to drive slowly and to play the music at a low volume. In response thereto, Raja and his companions started hurling abuses. Haider Shah forbade them from doing so and Raja and his companions left the scene declaring that if they were again forbidden, they would kill them. Shortly thereafter, the complainant/petitioner also came out of the house and the deceased and Haider Shah apprised him of the incident. They were busy in conversation when Raja returned to the place of occurrence in the same car armed with a pistol accompanied by a gunman carrying a pump action gun and another friend of Raja was armed with a base ball bat while another friend was armed with a Danda. Raja stopped the car and got down from the same.
Those armed with firearms aimed their weapons at Raza Mohsin and Haider Shah while Raja exhorted his companions to kill Abid Mohsin because he had forbidden him to play the music. On this attack was launched and the one who was armed with a base ball bat gave successive blows on the head of Abid Mohsin deceased as a result of which he started bleeding profusely. The accused i.e, respondent No,1 carrying Danda, also inflicted blows while the gunman fired with his pump action gun directly. On the receipt of these injuries Abid Mohsin fell down on the road and Raja then fired with his pistol in the air and took away his companions remarking that he had taught a lesson to those forbidding him to drive the car or play music at a high volume.
3. The deceased also made a statement before his mother in which Hasnain and others were implicated, which became his dying declaration and in the said statement, Hasnain was attributed blow while the scenario in which the attack was launched, was also narrated.
4. Respondent No,1 moved a bail application, but the same was dismissed by an Additional Sessions Judge at Lahore vide order dated 30-6-1998. The respondent then invoked the jurisdiction of the High Court and vide order impugned dated 29-7-1998 a learned Judge of the Lahore High Court admitted the respondent to bail. Hence this petition.
5. We have heard the learned counsel for the petitioner and the respondent at length. The only ground which prevailed with the learned Judge of the Lahore High Court while granting bail to the respondent was that he was not named in the F,.I.R. And his features or particulars were not indicated in the F.I.R. The learned Judge also held that the respondent had no role as far as the motive for the commission of crime '.'as concerned. On the other hand it was strenuously argued that the motor car which was being driven belonged to the father of the petitioner and the same was recovered, but the music deck was missing therefrom and the same was also subsequently recovered. The F.I.R. In this case was lodged through a written application by the complainant, a practising Advocate and at that time victim of the attack was struggling for life lying in the operation theatre. There is hardly any background of enmity between the first informant and the respondent. The omission to name not only the respondent but others was natural in the circumstances of the case, which has been satisfactorily explained by the first informant. Holding of identity parade in this case is irrelevant. Furthermore, F.I.R. Is not a substantive piece of evidence and during the investigation it was found that the respondent did participate in the commission of the crime. This was a dastardly act on the part of the respondent and others and in no way reasonable grounds existed to believe that the respondent had not committed offence punishable with death or life imprisonment. In this view of the matter, we convert this petition into appeal, allow the same and recall the ing bail to the respondent. The respondent shall be taken into custody forthwith.
Bail cancelled.