MUKHTIAR vs THE STATE

ORDER

1. ' DR. RANA MUHAMMAD SHAMIM, J.---The applicants have assailed the impugned order of the learned trial Court, dated 7-3-2007 whereby the bail was refused to the applicant.

2. ' Brief facts of the case are that on 28-7-2005 complainant along with Munawaruddin, Illahi Bux and Ghulam Mujtaba who are the sister's son of complainant, his nephews Mansoor and Inamullah, Naseer the son of the complainant, his maternal niece Irfana and his sister Mst. Amiran, was sitting in his house in village Mullan Ali. It was 5-30 p.m. When there came accused Ali Hassan, Iqbal, Asghar, Piaro, Abdul Raheem, Abdul Wahid, Azizullah, Haq Nawaz, Rab Nawaz, -bur Muhammad, Abdul Sattar, Mukhtiar, Jadal, Shamsuddin, Irshad, Wazir Ahmed, Abbas and Wajid Ali, all Mahesar by caste duly armed with guns. On their arrival, accused Jadal and Azizullah instigated others whereby accused Ali Hassan fired gunshot which hit Munwar, accused Haq Nawaz fired upon Inamullah, accused Wazir fired upon Mst. Irfana, accused Piaro fired upon Mst. Amiran, accused Sattar fired upon Mansoor, accused Wajid fired upon Saeed, and accused Iqbal fired upon Illahi Bux which hit them who fell down. Complainant went to hide himself in the room of the house.

3. Thereafter, all the accused went away by firing in the air. On the gunshot reports, Pervez Ali, Haji Fateh Muhammad and other villagers came at the Vardat. Complainant then with the help of villagers brought the injured at Taluka Hospital, Pano Akil, where injured Munwar succumbed to injuries. Complainant then lodged the F.I.R.

4. ' Learned counsel for the applicant submits that the learned trial Court has refused bail only on the ground that he was present at the time of incident and made aerial firing and thereafter he absconded away. He remained absent in spite of the repeated NBWs issued against him. However, he was arrested by the police on 12-1-2007. Learned counsel for the applicant submits that no legal action has been taken against the applicant under sections 87 and 88, Cr.P.C. He was only shown absconder under section 512, Cr.P.C. For which he has no knowledge. He further submits that there are counter cases pending against each other. He further submits that crime No,147 of 2005 has been filed against the complainant party on the same date regarding murder of Irshad Ahmed. He submits that it is yet to be seen as to which party was the aggressor. The allegations against the applicant are vague, ill-founded and general in nature. The applicant is behind the bars for the last more than 14 months without trial. He further submits that no specinc role has been assigned to the applicant and his case is one of further enquiry.

5. ' Mr. Muhammad Mahmood S. Khan Yousfi, learned Assistant Advocate-General and Mr. Noor Hassan Malik, learned counsel for the complainant opposed the grant of bail application and support the impugned order on the ground that section 34, P.P.C. i.e. Common intention to kill and consequently he fired. However, he admitted that Munawwar and Ghulam Mujtaba were succumbed to injuries due to firing of co-accused persons while Him Mahesar, Saeed Ahmed Mahesar, Illahi Bux Mahesar, Mansoor Mahesar, Mst. Ameeran and Mst. Irfana sustained injuries. He further submits that it is a double murder case and concession of bail is not to be granted to the applicant at this stage unless the complainant is examined.

6. ' In reply thereto Mr. Maqbool Ahmed Awan, learned counsel for the applicant submits that there are counter cases i.e. Crime No,147 of 2005 is pending and in direct complaint the complainant is enjoying the concession of bail.

7. ' I have heard learned counsel for the parties, perused the material available in case file.

8. Admittedly, no specific role is attributed to the applicant and deceased were succumbed to injuries on the firing of co-accused and not by the aerial firing of the present applicant. Only the presence of the applicant is shown at the place of incident and he has been alleged aerial firing only. The allegation against the applicant seems to be vague, ill-founded and general in nature. In my humble view the learned counsel for the applicant has succeeded in making out case of the applicant of further enquiry. The bail to the applicant is granted subject to his furnishing solvent surety in the sum of Rs,five lacs and P.R bond in the like amount to the satisfaction of the learned trial Court. The learned trial Court may not influence by the observations of this Court, as the same are tentative in nature.