' SHAIKH ABDUR RAZZAQ, J.---Nazir Ahmad, petitioner, seeks post-arrest bail in case F.I.R. No,492, dated 5-12-1998, registered at Police Station Saddar, Hasilpur under sections 302/109/34, P. P . C .
2. Briefly the prosecution case is that Munir Ahmad son of Nawab Ali and Naseer Ahmad son of Bashir Ahmad duly armed with pistol and 222 rifle way laid Tariq Aziz deceased and caused him injuries resulting in his death.
3. The petitioner applied for bail which was declined by the learned Special Judge (Suppression of Terrorist Activities) vide order, dated 24-1-2001. Hence, the instant petition.
4. Arguments have been heard and record perused.
5. The stand of the, learned counsel for the petitioner is that no active role has been attributed to the present petitioner and only role assigned to him is that of abetment which is evident from the statements of Ashfaq Ahmad and Mukhtar recorded on 5-12-1998. He further contends that petitioner was arrested on 23-2-1999 and since then he is in jail. Further submitted that charge has been framed on 17-1-2001 and now the matter is fixed for recording of prosecution evidence on 10- 3-2001. Further argued that the petitioner was not present at the time of occurrence and as such he by no stretch of imagination and in this respect has placed reliance upon Ghulam Haider v. The State (2000 PCr.LJ 440) and Syed Amanullah Shah v. The State (PLD 1996 SC 241). Learned counsel lastly submitted that all these facts make the case of the petitioner open for further inquiry.
6. Conversely the bail application has been opposed by the learned Assistant Advocate-General, Punjab. He submits that although the petitioner was not present at the time of occurrence yet his participation is evident from the statements of not only the complainant but Riaz Ahmad as well as Abdul Aziz and Ashfaq Ahmad P.Ws. Further submits that co-accused of the present petitioner, namely, Naseer Ahmad is still absconder. Further argued that since the charge has been framed and case has now been fixed for recording of prosecution evidence, so the petitioner is not entitled to the relief of bail at this stage. He has placed reliance upon Wajid Ali v. Mumtaz Ali Khan/State (2000 M LD 1172) wherein relief of bail has been refused to an accused who has been found to abetted an offence.
7. We have given our anxious consideration to the submissions made by the learned counsel for the petitioner as well as for State. It is evident from the contents of the F.I.R. That fatal and pivotal role has been attributed to Munir Ahmad as well as his co-accused Naseer Ahmad. The only evidence involving the present petitioner is of abetment. There is nothing on the record to show that the petitioner was even present at the time of occurrence. Admittedly, he was arrested on 23- 2-1999 and nothing has been recovered from him. The charge has been framed after about two years and now the matter is fixed for recording of evidence.
8. Since there is no tangible evidence against the petitioner except that Of statements of the complainant as well as Riaz, Abdul Aziz and Ashfaq Ahmad P. Ws. And he is behind the bars for more than two years so we are inclined to extend benefit of relief of bail to the petitioner.
Accordingly, the instant bail application is accepted and the petitioner shall be released on bail forthwith if not required in any other case provided he furnishes bail, bonds in the sum of Rs,1,00,000 (Rupees one lac) with two sureties each in the like amount to the satisfaction of learned trial Court.