Ansar Shah son of Rasool Shah seeks his post arrest bail in case FIR No, 225/2003 registered under Section 302/34 PPC at Police Station B-Division Gujrat. The allegation against the petitioner in the FIR recorded at the instance of Muhammad Rafi was that on the fateful night at about 11.30 O'Clock the complainant alongwith his two brothers namely Aqeel Ahmad alias Jewa and Shakeel Ahmad and Mehmood son of Muhammad Sharif Dar were going from Katchery Chowk towards Pakistan Chowk to take their meals by Car No, LKR/2000 and that when they had reached in front of Mohsin CD Centre opposite Mir Arms Dealer all of a sudden Qaiser Shah armed with rifle .44 bore and Mehboob Shah armed with rifle .44 bore came in front of the car and ordered the complainant party to get down from the car who obeyed the order. At that time Ansar Shah petitioner was present at Mohsin CD Centre and their father Rasool Shah was present at the corner of the street.
The petitioner also came at the scene of occurrence at the call of his brothers. Rasool Shah instigated his sons to murder Aqeel alias Jewa and to avenge the insult of Ansar Shah, as a result of which Qaisar Shah fired with his rifle at Aqeel Ahmad hitting him on his left flank. Aqeel Ahmed fell down and Qaiser shah fired hitting Aqeel on back side of shoulder and waist, then Mehboob.
Shah fired a burst with his rifle hitting him on dexter side of the head due to which brain matter came out and he died at the spot. During this while the petitioner went on exciting his brothers. The culprits after the occurrence fled from the spot in the aforementioned car. Accordingly the instant case was registered. The petitioner's bail application was turned down by the learned Sessions Judge Gujrat vide his order dated 27.1.2004. Hence the instant petition.
2. The learned counsel for the petitioner has contended that overt act is attributed to the petitioner, that according to the FIR the: petitioner excited the co-accused but it is not even mentioned as to what words had been used during the provocation or the excitement; that co accused Rasool Shah who raised lalkara has been allowed bail and the case of the petitioner being on a better footing than Rasool Shah co-accused he was also entitled to the same concession. The learned counsel relying on `Tariq Zia vs. The State 2003 S.C.M.R. 958. `Lakha Dino vs. The State 2002 MLD Karachi 610, 1996 S.C.M.R. 1654 and Muhammad Sadiq and another vs. The State 1996 SCMR 1654 submitted that the case of the petitioner is one of further enquiry, hence he is entitled to be released on bail.
3. The learned counsel for the complainant has opposed the grant of bail to the petitioner.
According to him the petitioner remained an absconder for (1/2) months after the occurrence; that he took the car of the deceased after the incident; that he was the main person around whom the motive revolves; that he had disfigured the deceased after his death; that he took active part in the occurrence; that it is clearly mentioned in the impugned order that the petitioner was responsible for the whole occurrence; that the car of the deceased was recovered from the petitioner; that the case of the petitioner is a case of deeper appreciation of the material available on record which is not permissible at this juncture; that the charge has been framed against the accused on 24.2.2004 and the case is already fixed for evidence on 17.4.2004.
The learned counsel for the State has made slightly different submissions. According to him the petitioner was present at the spot but no role was attributed to him and so far as the car was concerned it was recovered from a deserted place and not from the petitioner.
4. I have considered the arguments of the learned counsel at length and have gone through the record placed before me. The learned counsel appearing for the petitioner as well as for the complainant/State have unanimously stated that no overt role had been attributed to the petitioner and that the only attribution was that he came to the spot in response to the call of his co-accused. As far as the car in which the accused persons are alleged to have made good their escape is concerned according to the Investigating Officer the recovery of the said car had been effected from a deserted place and not from the petitioner as claimed by the learned counsel for the complainant. I find that the role of the petitioner is no different from his co-accused Rasool Shah who has since been granted bail. The question of common intention or the vicarious liability of the petitioner in the peculiar facts and circumstances of the case will be determined at the time of trial. The contention of the learned counsel for the complainant that since the trial has commenced therefore, the petitioner is not entitled to bail also does not carry much weight inasmuch as it is now an established legal position that bail can be granted even if the trial has commenced if the Court comes to the conclusion that the petitioner is entitled to the said concession on merits. In this connection reference can profitably be made to the case of 'Muhammad Ismail vs. The State PLD 1989 S.0 585 and Muhammad Arif vs. The State 1999 MLD 939.
5. In view of what has been discussed above I find the case of the petitioner to be done of further enquiry within the meanings of Section 497(2) Cr.P.C. Resultantly I admit the petitioner to bail in the sum of Rs. 50,000/- with two sureties each in the like amount to the satisfaction of the learned trial Court.
6. Before parting with this order I would like to add that the observations made herein being tentative in nature shall not affect the merits of the trial in any manner.