WARIS ALI vs STATE and anothers

ORDER

Waris Ali (Shakoor) s/o Muhammad Ramzan after having been refused pre-arrest bail by the learned trial Court has come to this Court for self same relief in a case registered in which he has not been nominated on the complaint of Ghulam Abbas under Sections 302/148/149, PPC at P.S. Tandlianwala, Distt. Faisalabad.

2. Briefly, the allegations put downed in the FIR by the complainant are that his son Adnan Abbas aged about 17/18 years auto Rickshaw driver was present at Adda Chak No, 412/GB with Rickshaw, alongwith him Muhammad Hussain and Ahmad Hassan were also present there. At about 7.00 PM, complainant alongwith his three other companions boarded the Rickshaw, proceeded towards his house situated at Chak No, 407/GB. When they arrived at Chak No, 412/GB, where Abu ul Hassan alongwith his better-half stood there, also boarded the Rickshaw and when the same reached near "Pull Jan Muhammad", said Abu-ul-Hassan and his consort got the Rickshaw stopped and de-boarded. After that Adnan Abbas deceased drove the Rickshaw and the same yet covered some paces, abruptly, from front side, five unknown armed persons confronted can be identified if they come up-front, out of whom one raised a Lalkara that Adnan Abbas be done to death whereupon an unacquainted culprit made firing with his weapon, out of the same one fire shot hit in front of neck of the deceased and the second shot hit on left side of his chest, two fire shots also hit the body of the Rickshaw. The deceased Adnan Abbas inclined to prone, on being attended, deceased was found dead.

3. Learned counsel for the petitioner submits that petitioner is not nominated in the FIR, on 14.7.2011 an application was submitted by the complainant wherein he was nominated alongwith other and the role ascribed to the petitioner is that he held deceased in his "Japha" whereas co-accused made fire shots at the deceased. Further submits that role attributed to the petitioner does not appeal to reasons for the reason that injuries received by the deceased depict that petitioner had the same kind of danger as well as chance of receiving fire shots as of deceased because one fire shot hit on right side of neck whereas the other on the left side of chest and the third on the middle of front of left arm, in this way, involvement of the petitioner appears to be malevolent on account of ulterior motive. Further submits that petitioner has no nexus with the motive, he did not cause any injury to the deceased. Further argued that Abu-ul-Hassan and his consort brought the deceased at the place of occurrence in collusions with the co-accused Ejaz and others who has motive against the deceased and as it has been mentioned in the application that co-accused Ejaz had the knowledge that deceased had developed illicit liaison with his sister Mst. Fazelat Bibi.

Lastly, it has been submitted that petitioner has joined investigation, nothing is required to be recovered from him and he never absconded after the involvement, in fact, he is not resident of the village where the alleged occurrence took place, on account of this, having lack of knowledge did not appear before police and as soon as he got the knowledge of his involvement, obtained pre- arrest bail and incessantly appearing before I.0 as well as Court, in this way, the material brought on record against the petitioner that he absconded is absolutely incorrect. Learned counsel in his arguments as ace has submitted that occurrence took place in the darkness of night, even otherwise identity of the culprits is highly doubtful in this case and has craved for acceptance of instant petition.

3. Learned DDPP assisted by learned counsel for complainant has opposed bail application on the ground that no doubt petitioner is not nominated in the FIR but the fact remains that complainant party has not involved any innocent person in the first instance. Further submits that had the intention of the complainant be to involve an innocent person? then petitioner would have been nominated in the FIR but as soon as the complainant got the knowledge about involvement of the petitioner and his co-accused he submitted an application wherein he nominated. Further argues that part-way commission of murder, petitioner physically participated in the occurrence, at the time of occurrence, he facilitated his co-accused while holding the deceased in "Japha" and provided an opportunity to co-accused to make fire shot at the deceased whereas no element of malevolence has been brought on record on the part of the complainant party to implicate falsely to the petitioner and offence alleged falls within the prohibitory clause of Section 497, Cr.P.C, therefore, he is not entitled for extra ordinary relief of pre-arrest bail.

4. Arguments have been heard and record perused.

5. It has gone indubitable that petitioner is not nominated in the FIR and after about two months of the registration of the case, crestfallen complainant submitted an application before SHO wherein he nominated the petitioner and others detailing the happening of the incident with specific roles of the culprits. Against petitioner's role has been mentioned that he took the deceased in his "Japha" at the time of firing. It has been noticed that deceased has received three fire shot injuries, all injuries are entry wounds, one is located on the left upper arm and other is on the left side of chest and the last has been found on the right side of chest, in this way, person held the deceased in "Japha" had the same level of apprehension of receiving of fire shot injuries. More particular, in this case is that apertures of all injuries have been found blackened and the possibility of exit wounds could not have been ruled out, the same might hit the petitioner. Petitioner has been found alien to the motive. Record shows that petitioner did not allure the deceased to come to the place of occurrence and this allegation has been levelled against co-accused Abu ul Hassan and his consort. The Court is not oblivious of the fact that pre-arrest bail in murder case is allowed in some preternatural circumstances and the prime consideration for the same is mala fide.

Interpretation of the mala fide has been gone through, the same can be divided in two parts i,e, mala fide on facts and mala fide on law. In this way, it has been seen that factual mala fide on part of the complainant exists because role allegedly ascribed to the petitioner does not prima facie seems to be rational and appears to be repellent to the senses. According to prosecution's own case, petitioner did not cause any injury to the deceased and nothing is required to be recovered from him.

6. So far as abscondence is concerned, it has been noticed that petitioner is not resident of the place where the incident took place and as soon as he had information of his involvement, then he went on pre-arrest bail, the same remained pending for about three months and on its dismissal, he has come to this Court, even otherwise abscondence by itself, provided it is explained, cannot be taken a bar for grant of bail when the case is otherwise made out.

7. For what has been discussed above, Court has been persuaded that prima facie a good case for grant of pre-arrest bail is made out in favour of the petitioner. Thus, instant petition is allowed and ad-interim pre-arrest bail already granted to the petitioner is hereby confirmed subject to his furnishing fresh bail bonds in the sum of Rs,2,00,000/- (two lacs) with one surety in the like amount to the satisfaction of learned trial Court within one month.

8. Before parting with this judgment, it is markedly mentioned that observations made op-cit are of tentative in nature, the same will not cause any affect to the mind of the learned trial Court at the time of final decision of the case.