ASHFAQ AHMED alias GOGA and anothers vs The STATE and anothers

' ABDUL SAMI KHAN, J.--- Through this petition under section 497 Cr.P.C. The petitioners have sought bail after arrest in case F.I.R. No,254/12 dated 8-11-2012 under. Sections 302, 324, 148, 149 P.P.C. Police Station Shah Ghareeb, District Narowal.

2. The learned counsel for the petitioners contends that the petitioners are innocent; they have been falsely involved in this case by the complainant by widening the net; as far as petitioner Ashfaq Ahmad alias Goga is concerned the allegation against him is that he has caught hold of the deceased from his legs during the occurrence; co-accused Javaid with the same role has already been allowed bail by this Court and the case of petitioner Ashfaq Ahmad is at par with him so he also deserves the concession of bail on the rule of consistency; as far as petitioner Muhammad Mushtaq is concerned, the injury attributed to him is declared as 337A(ii) P.P.C.; he has not repeated the fire so the question of attraction of section 324, P.P.C. To the extent of" petitioner.

Muhammad Mushtaq is to be determined by the learned trial Court after recording evidence; even otherwise it is settled law that vicarious liability of the accused is to be determined by the learned trial Court after recording evidence; he is previous non-convict; he has not caused any injury to the deceased; he remained on physical remand but nothing was recovered from him; he is behind the bars since 28-11-2012; investigation of the case is complete; he is no more required for further investigation; his further incarceration in jail would not serve any useful purpose.

3. On the other hand learned Deputy Prosecutor-General, after going through the record, has vehemently opposed this bail petition on the grounds that there is absolutely no malice of the complainant to falsely implicate the present petitioners in this case; the petitioners are named in the F.I.R. With specific role attributed to them and the role attributed to petitioner Muhammad Mushtaq is borne out from the MLC of Irfan injured P.W.; during investigation both the accused have been found involved in this case by the Investigating Officer and the case of the petitioners falls under the prohibitory clause of section 497, Cr.P.C.; challan has been submitted in the learned trial Court and if at this stage bail is allowed to the petitioners the case of the prosecution would be prejudiced.

4. I have heard the learned counsel for the petitioner and the learned Deputy Prosecutor General and have also gone through the record of this case with their able assistance. There is no denying of the fact that co-accused Javaid who has been attributed same role as that of petitioner Ashfaq Ahmad alias Goga has already been allowed bail by this Court and that order has not been challenged by the complainant so petitioner Ashfaq Ahmad deserves the concession of bail on the rule of consistency; reliance can easily be placed upon 1982 SCM R 909; as far as petitioner Muhammad Mushtaq is concerned, the role attributed to him is that he has caused firearm injury on the head of Irfan injured P.W.; the injury attributed to petitioner Muhammad Mushtaq is declared as 337A(ii), P.P.C.; he has not repeated the fire so- the question of attraction of section 324, P.P.C. To the extent of petitioner Muhammad Mushtaq is to be determined by the learned trial Court after recording evidence; he has not caused any injury to the deceased so the question of vicarious liability of the accused is to be determined by the learned trial Court after recording evidence; reliance can easily be placed upon 1981 SCMR 1082; he remained on physical remand but nothing was recovered from him; he is previous non-convict; investigation of the case is complete and he is no more required for further investigation; he is behind the bars since 28-11-2012; no useful purpose would be served by keeping him behind the bars.

5. For what has been discussed above, the case of the petitioners becomes one of further inquiry covered by subsection (2) of section 497, Cr.P.C. This petition is, therefore, allowed and the petitioners are granted bail subject to their furnishing bail bonds in the sum of Rs,100,000 (Rupees one lac only) each with two sureties each in the like amount to the satisfaction of the learned trial Court.

6. The observations made above are tentative in nature and are stristly confined to the decision of this bail petition only.