MEHROOZ and anothers vs The STATE and others

ORDER

' SYED IFTIKHAR HUSSAIN SHAH, J.---This single order will dispose of the instant petition filed by the petitioner Mehrooz and the Criminal Miscellaneous No,9876-B of 2011 filed by petitioner Haji' Nazir Hussain. Both have sought post-arrest bail arising out of the same F.I.R. No,281 of 2011 dated 24-4- 2011 registered under sections 302/109/34 at Police Station City Gojra District Toba Tek Singh.

2. Concisely, the facts as per F.I.R. Are that Abdul Rehman alias Arman Ilahi, younger brother of complainant and Asif son of Haji Nazir were fast friends. 9/10 days prior to the occurrence, Asif took the . Motorcycle of Arman Ilahi for dropping his sister and when returned' the same, its certain parts were changed. Arman Ilahi made complaint to Asif whereupon hot words exchanged between them. One day prior to the occurrence of this case at about 4-00 p.m., Arman Ilahi was encircled by Asif, Kashif and Hasnain and attacked with Chhuri. Arman Ilahi snatched Chhuri from Kashif and gave blows thereof to Kashif and Hasnain. On the .Following day the complainant along with his brother Arman Ilahi were going near Mochiwala Road and when they reached near Riaz Pervaiz Wheat Thrasher, Asif son of Haji Nazir, Arslan, Saeed and Akram armed with pistols came in front of them. Asif fired two successive shots hitting Arman Ilahi on his left side of chest. ArsIan also fired two successive shots hitting Arman Ilahi on his right side of chest. Saeed fired with his pistol, which landed on the left thigh of Arman Ilahi. Ikram alias Kami also fired which hit Arman Ilahi on his right thigh and right knee. Allegedly the occurrence was committed on the abetment of Haji Nazir Hussain, Hasnain and Kashif. The allegation against the petitioner Haji Nazir Hussain is that he abetted the commission of the said occurrence while Mehrooz instigated his co-accused for firing at the deceased.

3. Learned counsel for the petitioner Haji Nazir Hussain has contended that the case against the petitioner is false and fictitious one; that he was not present at the time and place of occurrence; that he is behind the bars for last more than three months; that the allegation against the petitioner is that he uttered some words in the presence of Reham Ilahi and one Rana Ikram Ilahi constituting the conspiracy of this case, which is baseless as a prudent man cannot utter such words before the rivals. Learned counsel has placed reliance on "PLD 1995 Supreme. Court 34 titled Tariq Bashir and 5 others v. The State" and "PLD 1996 Supreme Court 241 titled Syed Amanullah Shah v. The State and another".

4. Learned counsel for the petitioner Mehrooz has contended that the petitioner is not nominated in the F.I.R.; that he has been falsely implicated in this case; that the role of ineffective firing has been attributed to him; that he was below of the age of 16 years at the time of alleged occurrence as is apparent from his school leaving certificate; that he is behind the bars from the last more than two months; that no overt act has been attributed to. Him, therefore, he is entitled to the concession of bail.

4A. On the other hand, learned counsel for the complainant has opposed this petition and contended that the petitioner Nazir Hussain, who is the father of the principal accused had instigated his son for the murder of Arman Ilahi deceased, who had allegedly injured his sons prior to the occurrence of this case; that similarly Mehrooz petitioner had brought the principal accused Asif at the place of occurrence on his motorcycle and he made aerial firing and instigated the main accused to commit the occurrence, therefore, they are not entitled to the concession of bail.

5. I have heard learned counsel for the petitioners, learned D.P.-G. Assisted by the learned counsel for the complainant and also perused the record:-

6. The only allegation against the petitioner Nazir Hussain is that he uttered certain words, which constituted the offence of conspiracy in the presence of Reham Ilahi, father of the deceased and one Rana Ikram Ilahi, Advocate. He was not present at the time and place of occurrence and no overt act has been attributed to him.

7. Similarly, the petitioner Mehrooz has been allegedly shown armed with firearms but he had not fired at the deceased. He remained on physical remand and the weapon of offence has not been recovered from him while role assigned to him was of ineffective firing.

8. It is judiciously recognized that unfortunately there is a tendency to involve innocent with a guilty.

Once an innocent person is put under arrest, he remains in jail for a considerable time and normally it takes years to conclude the trial in murder cases and the damage caused to an innocent person by his arrest, though ultimately acquitted, would be always beyond repair. Nazir Hussain accused was not so foolish that he would have uttered the words constituting conspiracy in the presence of his enemies, who had injured his sons a day earlier. Similarly, Mehrooz, who was allegedly present at the spot armed with firearms, how had he instigated his co-accused to fire at the deceased instead of firing himself at the deceased. He had committed no overt act towards the deceased. Hence, the case of both the petitioners is of further inquiry.

9. Therefore, both the petitions in hand are allowed and the petitioners are E admitted to bail subject to their furnishing bail bonds in the sum of Rs,200,000 each with one surety each in the like amount to the satisfaction of learned trial Court.