WAJID ALI vs THE STATE

ORDER

' M. BILAL KHAN, J.--- Wajid Ali son of Shaukat Ali, petitioner, who is involved in case F.I.R. No.401 of 2007, dated 23-7-2007 registered with Police Station Narang, District Sheikhupura, for offences under sections 148, 302, 324, 109 and 149, P.P.C., by filing this petition, seeks post-arrest bail.

2. The case of the prosecution as it unfolded in the F.I.R. Registered at the instance of Muhammad Aslam son of Feroze Din, complainant, was that on 22-7-2007 he and his brother Muhammad Ashraf were irrigating the paddy seedlings in their fields when about 7/8 a.m., Zahoor Ahmad son of Munir, caste Jatt, resident of Uncha Pind came to the fields and asked them that now it was his turn to irrigate his fields; this led to an altercation between Zahoor on the one side and the complainant and his brother on the other; the matter was reconciled; however, Zahoor kept on nursing the grudge; on 23-7-2007 about 8-30 a.m. The complainant and his son Shahzad Aslam along with Saleem Akhtar, Muhammad Ashraf sons of Feroze Din, Rizwan son of ' Muhammad Ashraf and Mst. Nasrin Akhtar widow of Muhammad Ashraf were feeding their cattle in their Haveli, when Riasat Ali son of Bashir Ahmad, Muhammad Younas, Faqir Hussain, Ghulam Haider, sons of Taj Din, Shahzad alias Mota son of Munir Ahmad, Abbas Ali son of Riasat Ali, all armed with rifles and Wajid Ali son of Shaukat Ali (petitioner) armed with .12 bore gun, after consultation with one and other arrived there and encircled the complainant and his companions; they announced that the later would be taught a lesson for preventing them to irrigate their land yesterday; Riasat Ali son of Bashir Ahmad fired with his rifle which hit Rizwan son of Muhammad Ashraf on the head; the fire shot made by Younas son of Taj Din with his rifle landed at the chest of Rizwan on the left side; the fire shot made by Faqir Hussain son of Taj Din with his rifle hit Rizwan on his left bicep; Rizwan got precariously injured; Ghulam Haider son of Taj Din fired a shot with his rifle which hit Muhammad Ashraf son of Feroze Din on the left side of his chest; the shot fired by Shahzad alias Mota son of Munir with his rifle hit Muhammad Ashraf on his left bicep who too was seriously injured; Abbas son of Riasat fired a shot with his rifle which hit Mst. Nasrin widow of Muhammad Ashraf on her left leg; meanwhile a number of persons got attracted to the spot who intervened and rescued the complainant party from the assailants; the assailants left the scene while indulging in aerial firing. According to the complainant the incident had taken place with the abetment of Zahoor Ahmad son of Munir Ahmad and. Munk Ahmad son of Taj Din. The injured had been removed to Narang Hospital, however, Rizwan and Muhammad Ashraf succumbed to their wounds at the said hospital. Mst. Nasrin had been referred by the doctor to Mayo Hospital, Lahore.

Resultantly the instant F.I.R. Had been recorded.

3. The petitioner's plea for post-arrest bail did not find favour with the learned Additional Sessions Judge, Ferozewala who turned down his application vide order, dated 28-5-2008. Thereafter he approached this Court by means of Criminal Miscellaneous No.4980/B of 2008 which too had been dismissed as having been withdrawn by my learned brother Saif-ur-Rehman, J. On 8-7-2008 in the following terms:- "After having argued the case at some length, learned counsel for the petitioner wishes to withdraw this bail petition for the time being which is dismissed as having been withdrawn."

' The petitioner has again approached this Court by means of the instant application.

4. I have heard Ms. Sarah Bilal and Mr. Muhammad Waseem, Advocates the learned counsel for the petitioner, Mr. Muhammad Iqbal Chaudhry, the learned Deputy Prosecutor-General for the State, as also Mr. Aftab Ahmed Bajwa, Advocate assisted by Mr. Shehzad Saleem Warraich, Advocate the learned counsel for the complainant and have perused the record brought by Hussain Ali Inspector/Incharge Investigation with Jaabar Hussain, A.S.-I., Police Station Narang Mandi, District Sheikhupura.

5. It has straightaway been observed that the only role attributed to the petitioner was that he while carrying a .12 bore gun had accompanied his other co-accused to the scene of occurrence.

There is no allegation against him that he had caused any injury either to the deceased or to anyone else present there. In fact the F.I.R. Does not even suggest that he used his 12 bore gun with which he was allegedly armed during the course of the main transaction. According to the F.I.R. The assailants which included the petitioner while leaving the place of occurrence had indulged in aerial firing. Even otherwise the contentions of Ms. Sarah Bilal, the learned counsel for the petitioner that no empty cartridge had been recovered from the scene; that five injuries suffered by Muhammad Younas son of Taj Din co-accused of the petitioner, had been concealed by the complainant; that during the course of investigation the Investigating Officer had opined that although the petitioner was present at the place of occurrence but he was not amongst the aggressors and; that in the report under section 173, Cr.P.C. The police had opined that it was the accused party which had instigated the attack, could not be repelled by the learned Deputy Prosecutor-General. In view of the role attributed to the petitioner, his complicity in the case and his vicarious liability calls for further inquiry within the meaning of subsection (2) of section 497, Cr.P.C.

6. Mr. Aftab Ahmad Bajwa, the learned counsel for the complainant has argued that since the earlier bail application of the petitioner had been withdrawn "after arguing the case at some length" the said bail application would be deemed to have been dismissed on merits and as such this application is not maintainable. I am afraid I cannot subscribe to the argument advanced by Mr. Aftab Ahmad Bajwa, Advocate. In the case of Ali Hassan v. The State 2001 SCM R 1047 the bail application of the petitioner therein had been disposed of by a Division Bench of the Lahore High Court, Lahore, in the following terms:--- "Having argued the matter at some length, prays for permission to withdraw this petition.

Dismissed as withdrawn."

' The Honourable Supreme Court held that in such a situation it could not be said that the case had been decided on merits, nor it could be asserted that certain grounds were raised which were repelled or found favour with the learned Judge, as the case may be. The dictum of the Honourable Supreme Court in the case (supra) on the scope of second bail application furnishes a complete answer to the contention raised by Mr. Aftab Ahmed Bajwa, the learned counsel for the complainant.

7. For what has been stated above this application is allowed and the petitioner is admitted to post-arrest bail provided he furnishes bail C bond in the sum of Rs,1,00,000 (Rupees one lac) with one surety in the like amount to the satisfaction of the learned trial Court.

8. Before parting with this order I would like to add that the observations made hereinabove are tentative in nature and are not designed to influence the course of the trial in any manner.