MUHAMMAD AZEEM and others vs The STATE and others

ORDER

' ZAFARULLAH KHAN KHAKWANI, J.---Through this petition Muhammad Azeem and Nazar Aziz petitioners seek post arrest bail in case FIR No,490 dated 10-7-2009 under sections 302/ 34, P.P.C.

Registered at Police Station Taxila, Distt. Rawalpindi.

2. It was alleged in the FIR that the petitioners along with two other co-accused armed with lethal weapons came at the spot in a car which was being driven by Nazar Aziz, petitioner. Muhammad Azeem, petitioner was armed with a kalashnikov and raised a lalkara to kill the complainant and his brother Hameed Ullah upon which both the co-accused made firing. The fire made by co- accused Zafar with his pistol landed on right flank of Hameed Ullah who fell on the ground and died. Thereafter the accused party fled away from the spot.

3. Arguments pro and contra have been heard and record perused.

4. The occurrence took place hardly two kilometers away from the police station but the matter was reported after about 3.00 hours, thus the possibility of deliberations and consultations before lodging the FIR cannot be ruled out. No overt act is attributed to any of the two petitioners. They were arrested and remained on physical remand for 13 days but nothing was recovered from their possession to connect them with the commission of crime. During investigation both the petitioners took a specific stance that they were not present at the spot rather they were present at Makarwal Tehsil Eesa Khel of Distt. Mianwali. Their plea of alibi was proved through data collected from their mobile phones and as such they were found innocent. Challan has been submitted in court in which the petitioners have been placed in column No,

2. It has been held by the apex Court in case reported as Malik Muhammad Saleheen and others v. Arshad Siddiq and 2 others (1997 SCM R 1829) that plea of alibi raised in a bail matter may not be out rightly rejected and can be gone into for the purpose of grant or refusal of bail. The accused party is closely related to each other inasmuch as petitioner No, 1 is real brother of co-accused Muhammad Amir and cousin of petitioner No, 2 who is real brother of Zafar co-accused to whom fatal shot is attributed. Only one shot was fired which proved fatal and four real cousins have been involved. Keeping in view delay in lodging of FIR after consultation, possibility of widening the net to involve whole family in this case cannot be ruled out. No need to mention here that bail cannot be refused on the basis of vicarious liability, unless it is shown through positive evidence that the petitioners had also played a role in the crime. Guidance can be sought from the case reported as Manzoor Hussain and another v. The State (2011 SCM R 902). Furthermore the question of vicarious liability of the petitioners can only be determined at the time of trial after recording of evidence. There are chain of authorities of the superior Courts that where there is only proverbial lalkara attributed to the accused or general allegation is leveled and no specific injury is attributed or nothing is recovered from the accused and he is declared innocent during investigation, his case becomes that of further inquiry entitling him to the grant of bail. Guidance in this respect has been sought from the dictum laid down in the cases reported as Rafiq Khan v. The State (1995 SCM R 343), Muhammad Sadiq and another v. The State (1996 SCM R 1654) and Muhammad Shakeel v. The State (PLD 2014 SC 458).

5. In this view of the matter, this petition is accepted and the petitions are allowed bail subject to each one of them furnishing bail bonds in the sum of Rs,2,00,000 with two sureties each in the like amount to the satisfaction of the learned trial Court.