ZAFAR IQBAL and another vs THE STATE

ORDER

' M. BILAL KHAN, J.--- Zafar Iqbal (Zafarullah) son of Subedar Habib Ullah, the petitioner, by filing the instant petition seeks post-arrest bail in case F.I.R. No,21, dated 26-11-2005, registered at Police Station Bangi Khel, District Mianwali for offences under sections 302, 324, 148, 149, P. P.C.

2. According to the F.I.R. Lodged by Kajaal Khan son of Daulat Khan, he was resident of Police Station Shakar Dara, District Kohat; he was having dispute with Shafiq and Aziz sons of Zarghoon Shah, residents of Borri Bangi Khel about one Kanal of land situate in Shakar Dara; on 16-11-2006, a Jarga was convened by the respectables and the matter was resolved; as per practice, he along with Kalandar Khan, Wazir Khan, Jalandar Khan, his brothers, Hayat-ur-Rehman son of Saifur-Rehman, Nawab Khan son of Islam Khan, Akbar Khan son of Arbab Khan, proceeded to have a meeting with Shafiq and others at his village situate within the limits of Police Station Bangi Khel, by means of a Hilux van at 4-45 p.m. When they were at some distance from village Maddo Chanda and were proceeding on foot, all of a sudden Shafiq, Aziz; Wazir sons of Zarghoon Shah, Usman son of Said Badshah, Sajid Naeem son of Khan Badshah, Zafar Iqbal Khan (petitioner), all armed with kalashnikovs, came in front; Aziz fired a burst with his kalashnikov, which hit his companion Nawab Khan on various parts of his body; Shafiq fired a burst hitting his brother Wazir Khan on different parts of his body; thereafter bursts fired by Wazir Khan and IJsman hit Jalandar Khan and Qalandar Khan, respectively, on various parts of their bodies; Sajid Naeem and Zafar Iqbal fired bursts with their respective weapons, which struck on different parts of the body of Hayat- urRehman; he and his companions took shelter behind stones; the accused persons, ascended the mountain while indulging in firing; Nawab IChan, Wazir Khan and Jalandar Khan succumbed to their injuries at the spot, whereas Kalandar Khan and Hayat-ur-Rehman, who were seriously injured, were shifted to Civil Hospital, Kala Bagh.

' The motive according to the, complainant was a dispute over the land. Resultantly, the instant F.I.R.

Had been recorded.

3. The petitioner's plea for post-arrest bail had been turned down by the learned Additional Sessions Judge, Mianwali vide order, dated 2-5-2006. Hence, the instant petition.

4, I have heard the learned counsel for both the sides at considerable length and have also gone through the record brought by Muhammad Akram, S.-I.

5. It has been observed that there was no allegation against the petitioner that he had caused any injury to any of the deceased. The only allegation against him as already stated elsewhere was that he had caused injuries to Hayat-ur-Rehman P.W. The injuries suffered by Hayat-urRehman were reported five in number. Injuries Nos.1, 2, 4 and 5 fall under section 337-F(iii), P.P.C. Whereas injury No,3 falls under section 337-A(ii), P.P.C. And none, of the said injuries attracts the prohibitory clause of section 497(1), Cr.P.C. The record reveals that during the course of investigation; the petitioner had been declared to be innocent and his plea of alibi that he was on duty in a factory at Faisalabad where he was employed, had found favour with the investigating agency. A report for his discharge had been formulated, however, the learned Magistrate refused to agree with the said police request. It has also been revealed from the record that the motive part of the occurrence is not attributable to the petitioner. He is not related to any of the accused persons. In fact it is on record that he has got enmity of murder cases with the principal accused, namely, Shafiq. Thus, there was apparently no occasion for him to have joined hands with his arch enemy, Shafiq, in assaulting the complainant party. The petitioner is admittedly a resident of Mianwali and there is nothing on record to show that he had any social intercourse with the complainant party, which was resident of Shakar Dara in Kohat. Even since his arrest, the petitioner's consistent stand was that he is totally unconnected in the matter and has nothing to do with the incident. Even his parentage does not find mention in the F.I.R. Keeping in view the totality of facts and circumstances of the case, the participation of the petitioner in the alleged incident and his culpability as also his .Vicarious liability are questions, which need further probe within the meaning of subsection (2) of section 497, Cr.P.C.

6. Resultantly, this petition is allowed and the petitioner is admitted to post-arrest bail subject to his furnishing bail bonds in the sum of Rs,50,000 (Rupees fifty thousand) with one surety in the like amount to the satisfaction of the learned trial Court.