' The petitioner alongwith Sarfraz Shah, Muhammad Saqib, Muhammad Bilal,Qazi Zahid, Hakeem Ejaz Hussain, Qamar Hussain Shah, Sher Muhammad Bhutta and Nazar Hussain stand charged under sections 302/109/34, P.P.C. Registered vide F.I.R. No,126 of 2000 at Police Station Kotwali, Bahawalpur for the murder of Mst.Nusrat 13ibi mother of Mst. Rifat Sultana complainant.
2. The petitioner applied for after-arrest bail which was declined to him by the learned Sessions Judge, Bahawalpur vide order, dated 7-2-2001. Hence the instant petition.
3. Arguments have been heard and record perused.
4, The stand of the learned counsel for the petitioner is that no overt act has been attributed to the petitioner as is evident from the contents of F.I.R., that only part attributed to the petitioner is that he facilitated the commission of this offence by transporting the main accused Sarfaz Shah after the alleged commission of this offence, that he has been assigned the role of using motorcycle which has not been recovered from him although he remained ob. Physical remand with police for 14 days, that the petitioner is in jail for the last ten months, that main accused Sarfraz Shah has been arrested w,e,f, 16-2-2001 and is in jail at present, that no independent witness of the locality has been cited in the instant case and the eye-witnesses are related to - the complainant. In support of his contentions he has placed reliance upon "Hassan Gul and another v. State and another" PLJ 1999 Cr.C. (Peshawar) 773), "Aziz v. The State (2001 PCr.0 214 Lahore). "Abdullah alias Malli v. State"
(PU 1999 Cr.C. (Lahore) 468), "Khuda Bux Bozdar v. The State "(1999 M LD 172 Karachi), "Chiragh Masih v. The State "(1998 PCr.LJ 287 Lahore), "Muhammad Arif Hussain v. The State" (1999 M LD 939 Lahore).
He further contended that almost all the members of family of petitioner have been involved in this case which fact itself makes the case of the petitioner open for further inquiry and placed reliance upon "Akhtar Ali etc. v. The State" (1998 Cr.0 224 Lahore). He thus submitted that all these facts make the case of the petitioner open for further enquiry under section 497(2), Cr.P.C. As such he be admitted to bail.
5. Conversely, the bail application has been opposed by the learned counsel for the State. He submitted that the petitioner abetted the commission of this offence by transporting the main accused Sarfraz Shah after the commission of this offence, that even if it is assumed that petitioner did not know the intention of the main accused prior to the commission of this offence, he knew it well after the main accused Sarfraz Shah committed the murder of deceased Mst. Nusrat Bibi, that had the petitioner not abetted the offender he must have not succeeded in decamping from the spot, that all these facts prove his intentional involvement in this case as such he is not entitled to the relief sought by him.
6. It is evident from the contents of F.I.R. That the only role attributed to the present petitioner is that he drove away the main offender Sarfraz Shah on his motorcycle from the place of occurrence and as such helped him in decamping from that place. The petitioner was arrested on 1-6-2001 and remained on physical remand but no recovery of the alleged motorcycle was effected from him.
The main accused Sarfraz Shah who had absconded in the first instance has been arrested and is in judicial lock-up. The petitioner has not been attributed any other overt act in the commission of this offence except that of mentioned above. He has also been found innocent by some Investigating Officers. Relying upon the authorities produced by the learned counsel for the petitioner, the case of the petitioner squarely falls under subsection (2) of section 497, Cr.P.C. And as such petition is accepted and the petitioner is admitted to bail subject to his furnishing bail bond in the sum of Rs,1,00,000 (Rupees one lac) with one surety in the like amount to the satisfaction of trial Court.