' The petitioner alongwith Waheed Butt son of Mehmood Butt stands charged under section 302/34, P.P.C. Vide F.I.R. No,96, dated 5-6-1998 registered at Police Station City Farooqabad, District Sheikhupura for committing the intentional murder of Asif Mehmood son of complainant Muhammad Mehmood.
2. Briefly stated the facts are that on 5-6-1998 at about 9-00 a.m. Muhammad Mehmood complainant alongwith his son Asif Mehmood were proceeding to their house, when Waheed Butt son of Mehmood Butt and Sh. Saeed son of Sh. Rashid (petitioner) met them while going on motorcycle. They were stopped by Asif Mehmood who requested Waheed Butt to return the amount outstanding against him. This demand on the part of Asif Mehmood resulted into exchange of hot words between Asif Mehmood and Waheed Butt and other. The matter was, however, patched up by Anjum Javed son of Nazir Ahmad Sheikh. Waheed Butt and other left the place issuing threats of dire consequences. On the same day at about 12-00 noon the complainant alongwith his brother Muhammad lshaque went to Moon Hair Dressers for hair cut. Shahzada Saleem son of Fazal was also present in the said Hair Saloon. In the meanwhile Asif Mehmood son of the complainant also arrived there and kept on waiting for his turn. At 12-30 noon Wahee Butt and Sh. Saeed (petitioner) armed with pistols entered in the said Hair Saloon. Sh. Saeed (petitioner) raised Lalkara that Asif Mehmood be taught a lesson for insulting them in the morning.
Simultaneously Waheed Butt fired with his pistol which hit Asif Mehmood on the front of his chest, as a result of which he fell down and succumbed to the injuries. Both- the accused are said to have decamped from the place waving their respective arms and firing in the air. The incident was also witnessed by Muhammad Ishaque and Shahzada Saleem. Leaving the dead body in the custody of Muhammad Ishaque and Shahzada Saleem the complainant made for the police station and lodged report.
3. The petitioner applied for bail which relief was declined to him vide order, dated 20-8-1998 by the Additional Sessions Judge, Sheikhupura. Hence the instant petition.
4. Bail has been sought inter alia on the ground that petitioner had got concern regarding the return of any debt which was outstanding against his co-accused, that only part attributed to the present petitioner is that of raising Lalkara, that no recovery of pistol has been effected from him though he remained on physical remand for 14 days, that no recovery of empties has been made from the place of occurrence, that no other motive is attributed to the present petitioner, that it also does not stand to reason that father, uncle, paternal-uncle will all assemble in the shop of hair cutting saloon at the time of alleged occurrence, that no independent witness of the locality has been associated although occurrence admittedly took place in Bazar.
5. Learned counsel for the petitioner further contends that in case in which only proverbial Lalkara is attributed to the accused the concession of bail has been allowed and relied upon Amanat Ali v.
The State 1993 SCM R 1992, Rafique Khan v. The State 1995 SCM R 343, Khan Badshah v. The State 1978 SCM R 77, Abdul Aziz v. Shabbir Ahmad and others PLD 1996 SC 658.
6. Conversely the contentions raised by the learned counsel for the petitioner have been controverted/repudiated by the learned counsel for the complainant assisted by learned counsel for the State.
7. The stand of the learned counsel for the complainant is that the presence of the petitioner at the time of first episode shows his active participation and connivance with his co-accused in the commission of this offence, that petitioner is alleged to be armed with pistol and has been attributed the role of Lalkara culminating into the death of deceased Asif Mehmood, that petitioner has a history of previous involvement as case vide F.I.R. No,231 of 1995 under sections 457, 411 and 380, P.P.C. Stands registered against him on 17-11-1995 in which he is still an absconder, that occurrence has taken place as a result of pre-meditation and consultation between the petitioner and his co-accused, he further contended that no enmity is alleged to be existing between the petitioner and the complainant as such question of his false involvement it this case does not arise.
He vehemently argued that instant case is not a case of proverbial Lalkara, but it is a case in which the co-accused of the petitioner committed the murder of the deceased at his instigation, as such he is equally responsible for the death of the deceased and is not entitled to relief of bail and relied upon Mubarik Shah v. The State 1986 SCM R 1681, Chiragh Din and others v. The State PLD 1996 SC 340, Amir Khan v. The State PLD 1970 SC 789, Noora v. The State 1994 PCr.LJ 1311 Lah., Allah Din and 2 others v. The State 1997 PCr.LJ 101.
8. He further contended that provisions of section 302/34, P.P.C. Stand fully attracted in the instant case as the petitioner accompanied his co-accused on both the incidents as a result of which the deceased Asif Mehmood was done to death and has relied upon Khairoo v. The State PLJ 1975 SC 219, Rasool Bakhsh v. The State PLD 1970 SC 316. He lastly argued that since the challan has been submitted in the Court and case is fixed for 31-10-1998, so the petitioner is not entitled to the relief and relied upon Syed Akbar and another v. Gull Akbar 1996 SCM R 931.
9. A perusal of the contentions enumerated above, clearly shows that the only part attributed to the present petitioner is that he was present with his co-accused at the time of first occurrence as well as at the time of subsequent int:ident which resulted into death of the deceased. He has been shown to be armed with pistol and is attributed the role of raising Lalkara, thereby instigating his co-accused to commit the murder of deceased Asif Mehmood. Admittedly neither the alleged pistol has been recovered from the petitioner nor any empty has been recovered from the place of occurrence. It is also fact that all the P.Ws. Examined by the prosecution in support of its stand are inter-related and none from the Bazar has been either cited as a witness or examined in this case, though the occurrence has taken place in the Bazar.
10. Learned counsel for the petitioner has relied upon the authorities wherein under similar circumstances the relief of bail has been granted. On the other hand authorities relied upon by learned counsel for the complainant, a similar relief has been refused. The main authority relied by the learned counsel for the complainant pertains to 1986 SCM R 1681. The facts of the said cases- are entirely different to the facts in hand as the petitioner in that case stood charged for trafficking narcotics and his three other co-accused were working as his servants and agents, it was under these circumstances that the fatal Lalkara attributed to the petitioned of that case led to indiscriminate use of fire-arms by other three co-accused. In the instant case the main grievance is between the deceased as well as Waheed Butt who has been assigned a fatal role culminating into death of deceased. No previous history regarding any enmity exists between the petitioner and the deceased. Keeping in view the facts and the role attributed to the present petitioner, his case squarely falls within the ambit of section 497(2), Cr.P.C. Accordingly petition is accepted and he is admitted to bail in the sum of Rs,one lac with two sureties each in the like amount to the satisfaction of the trial Court.