Zulfiqar the petitioner has sought for after arrest bail in case F.I.R. No.163 dated 16-7-2002 under sections 302/148/149, P.P.C. Registered with Police Station Qabula Sharif, Tehsil Arifwala, District Pakpattan Sharif.
2. Briefly the prosecution case as per F.I.R. Is that on 15-7-2002 at about 7-00 p.m. Zulfiqar (the present petitioner) armed with rifle, Razzaq with rifle, Mumtaz Ahmad with 222 bore rifle, Muhammad Rukhsar with 12 bore gun,, and Shafqat with Sota, in prosecution of the common object of the unlawful assembly formed by them started demolishing the Khal (watercourse) dug out by the complainant's side. He (complainant), his brother Abdul Ghaffar, Hafiz Shah Muhammad and Rashid Khan resident of the village came at the spot and Abdul Ghaffar his brother stopped them from doing so. Thereupon, Zulfiqar Ali raised Lalkara that they may be taught lesson for making watercourse/Khal on which Razzaq fired straight shot at Abdul Ghaffar hitting on his left armpit. He fell down. Thereupon Mumtaz Ahmad with rifle fired at him hitting on his left buttock. Shafqat inflicted two Sota blows to Hafiz Shah Muhammad hitting on his upper right eye and left thigh.
Zulfiqar (the present petitioner) and Muhammad Rukhsar remained firing in the air and raising Lalkara that whosoever came near them would be dealt with in the same way as was Abdul Ghaffar. On the report of fires, Faiz Ahmad and others residents of the village were attracted to the spot, who witnessed the occurrence. Abdul Ghaffar succumbed to his injuries at the spot.
3. The motive behind the occurrence is that the complainant party was making watercourse in the land of the petitioner's side and on the grudge over the same, they have committed the above act.
4. It has been contended on his behalf that he has falsely been roped in; that mere Lalkara is ascribed to him qua the commission of crime and no injury to anyone; that in the investigation it has been found that he was empty-handed at the time of the occurrence that Javed Iqbal, his real brother had brought suit for declaration with permanent injunction against the complainant party and in the same status quo order has been passed/issued in their favour; and that he is behind the bars for the last about five months and is previous non-convict.
5. Conversely the learned counsel for the State has opposed the petition on the ground that he is named in the F.I.R.; that he has not only raised Lalkara but also made firing in the air.
6. I have carefully considered the submissions made by the learned counsel for the parties with the help of available record.
7. The fact remains that Lalkara and ineffective firing is attributed to him in the commission of crime alleged. He has been attributed injury to none.
8. Learned counsel for the petitioner has placed on record the certified copy of order dated 13-7- 2002 recorded by learned Civil Judge 1 Class, Pakparttan Sharif in the suit for declaration with permanent injunction titled Javed Iqbal v. Province of Punjab and others. Javed Iqbal is said to be brother of the petitioner. In the said suit, the learned Civil Judge has issued order to maintain status quo in respect of the suit-land.
9. Besides than this, in the case the Diary No.17 has been recorded by Naveed Zaman Kiani, S.- I./S.H.O., Police Station Ahmad Yar on 17-7-2002. In the same, it has been mentioned that during the investigation it transpired that petitioner was empty-handed at the time of occurrence and he has shown stay order to the complainant party but they resorted to firing and he ran away and hid himself in crop.
10. The question of his vicarious liability is to be gone into at the trial. Thus his case is covered under subsection (2) of section 497, Cr.P.C. Calling for further inquiry into his guilt. He is behind the bars for the last about six months.
11. In these circumstances, I find him entitled to bail. I, therefore, accept this petition and he is admitted to bail provided he furnishes bail bonds in the sum of Rs.50,000 (Rupees fifty thousand) with two sureties each in the like amount to the satisfaction of the learned Sessions Judge/trial Court.