' Due to the dispute of some landed property between the parties an occurrence took place in Mauza Nouvianwala within the area of Police Station Alipur Chattha, District Gujranwala on the night falling between 14/15-7-1999 about which Mst. Nusrat Bibi complainant got recorded F.I.R. No, 359 on 14-7-1999 at 7.00 a.m. At Police Station Alipur Chattha, District Gujranwala under section 302/34/109, Pakistan Penal Code. According to Mst. Nusrat Bibi at the time of the occurrence she, her husband Barkat Ali (deceased of this case), her son Muqarrab alias Chand, her brother Muhammad Arshad and orie Ghulam Mustafa 'Bhanja' of her husband were sleeping. At about 2.00 p.m. Muhammad Siddique, Shafqat Javed both sons of Muhammad Tufail son of Walayat Khan armed with lethal weapons and one Muhammad Tufail son of Inayat Ullah trespassed the house and stood near the Charpai' of her husband Barkat Ali who was made to awake. They issued the threats to him. Muhammad Siddique fired at her husband Barkat Ali which hit his front chest. The second fire was affected by Shafqat Javed which also hit his chest. The third fire effected by Muhammad Tufail son of Inayat Ullah hit left hand of Barkat Ali. During the aforesaid occurrence Muhammad Tufail petitioner son of Walayat Khan is said to have caught hold of her husband Barkat Ali from his legs. The occurrence is said to have been committed in collusion with Lal Khan and Fayyaz co-accused.
2. After the occurrence the law set in motion. The Investigating Officer reached the spot and made the spot inspection, prepared the inquest report and sent the dead body for autopsy. During the investigation this petitioner Muhammad Tufail son of Walayat Khan was declared as innocent, but the investigation has been transferred by the superior police officer at the request of the complainant. Muhammad Tufail petitioner son of Walayat Khan filed the application for his admission to bail which was dismissed by the learned Additional Sessions Judge who has filed this petition before this Court with the same desire.
3. I have heard the learned counsel for the petitioner as well as the learned Assistant Advocate- General and gone through the record before me. The contentions of the learned counsel for the petitioner are that even though armed with a lethal weapon Muhammad Tufail petitioner son of Walayat Khan did not use the same to whom the role of catching hold of the legs of Barkat Ali deceased has been attributed and that the aforesaid alleged role does not appeal to common sense especially when Barkat Ali deceased was sleeping on the cot. He added that the innocence of Muhammad Tufail petitioner son of Walayat Khan in the initial investigation is a positive factor/circumstance in his favour keeping in view the role attributed to him. On the contrary learned Assistant Advocate-General laid the emphasis that the petitioner accompanied his co- accused, trespassed the house of the complainant at midnight who participated in the occurrence in furtherance of common intention. He continued that the firing was affected from a close distance and the role of catching hold of the legs attributed to Muhammad Tufail petitioner cannot be said to be unnatural or improbable.
4. I, however, hold the view that the reasoning adopted by the learned counsel for the petitioner has to prevail. In this case three co-accused of this petitioner have been ascribed the practical role of affecting the firing on the person of Barkat Ali deceased which hit him. The fact of the matter is that Muhammad Tufail petitioner son of Walayat Khan is alleged to be armed with a lethal weapon who did not use the same. He did not fire at the deceased and also did not injure any witness. The important fact to be kept in mind is that Barkat Ali deceased is stated to be sleeping when he was surprised by the accused persons, out of whom three fired at him and the alleged role of catching hold of the legs of the deceased attributed to this petitioner can prima facie and in a safe manner be held to be a highly dangerous affair. Without prejudice to the merits of the case I would hold that the role attributed to this petitioner does not appeal to common sense which rather is against the natural human conduct. Keeping in view the aforesaid aspect of the matter, the initial opinion of the Investigating Officer about the innocence of this petitioner has to steal the eminence and need not be ignored even though the investigation has been transferred. I would be glossing over an important aspect of the matter by expressing that it is not a case of one shot. It is a case wherein three co-accused are alleged to have fired at the deceased lying on the cot at midnight.
The natural conduct of this petitioner would have been either to have fired at the deceased from a safe place or to have stood close to him alongwith his co-accused.
5. The cumulative effect of the aforesaid state of affairs, analysis of the matter at this bail stage and discussion is that involvement of Muhammad Tufail petitioner son of Walayat Khan can safely be held to be a question of further inquiry. As such he is entitled to be admitted to bail than to be retained in jail.
6. Holding it to be a fit case, I accept this application and admit Muhammad Tufail petitioner son of Walayat Khan to bail in the sum of Rs,1,00,000 (Rupees one lac only) with one surety in the like amount to the satisfaction of the learned Sessions Judge, Gujranwala with the direction to appear before the learned trial Court on every date of hearing failing which the learned trial Court may cancel his bail and, proceed further in accordance with law.