MAQBOOL, etc vs STATE etc.

ORDER

The Petitioners No,1, 3 and 4 namely Maqbool, Ashiq and Mohsin Ali, respectively , are seeking their pre-arrest bail in case FIR No,472 of 2018 dated 19.09.2018, registered at Police Station Saddar Burewala, District Vehari in respect of of fences under Sections 302, 452, 35', 337-F(i), 337-L(ii), 148,149, PPG.

2. The allegation as against the petitioners in the FIR is that Petitioner No,1 namely Maqbool son of Talib Hussain gave a "sota" blow on the head of the injured witness Haider and that Petitioner No,3 namely , Ashiq son of Muhammad Aslam gave a "sota" blow on the right arm of Nousher (deceased) and Petitioner No,4 namely Mohsin Ali son of Zafar Iqbal gave a blow to the Nousher (deceased), who fell down because of the same.

3. I have heard the arguments on behalf of learned counsels for both the parties and perused the record.

4. Initially; the FIR was registered under Sections 354, 452, 337-F(i), 337-L(ii), 148/149 PPC, however , subsequently , offence under Section 302 PPC was added due to the demise of the injured Nousher . The Post- mortem Examination of the deceased Nousher was conducted on 26.09.2018 and the Medical Officer only observed one injury on the person of Nousher (deceased) which was a. lacerated wound on top of the head 5 cm x 2 cm and no other injury was observed on the person of the deceased. Nousher at the time of Post-mortem Examination except for surgical wounds. Hence, the allegations as levelled against the Petitioners No, 3 & 4 namely Ashiq and Mohsin Ali, respective ly, are not borne out from the medical evidence as is available on the record. Furthermore, while getting recorded her statement under Section 161 Cr.P.0 a witness namely Mst. Waziran Bibi did not attribute any role to the Petitioner No,4 namely Mohsin Ali of caus ing any injury to the deceased Nousher . The contention of the learned counsel in the circumstances cannot be rejected that the involvement of the petitioners in this case is without mala fide and malicious intent. Mohsin Ali, Petitioner No,4, is the real brother of Muhammad Ahsan Iqbal, the main accused, who has been attributed the role of causing blow on the head of deceased Nousher from the wrong side of hatchet which proved fatal in the case. There is litigation pending between the parties prior to the occurrence and it cannot be ruled out that the net was extended role of causing a "sota" blow on the head of injured witness Haider which injury was declared as falling within the definition of Shajja- i-Khafifah (337-A(i)) PPC which is a bailable offence as per the Schedule II of the Code of Criminal Procedure, 1898. The common object and formation of Unlawful assembly shall be finally determined by the learned trial Court. The investigation of this case is completed and the Investigating Officer has already verified the stance of the petitioners as well as the complainant. Learned counsel for the complaina nt has vehemently argued that recovery of weapon of offence is to be effected from the petitioners and hence they do not deserve to be granted extraordinary relief of pre-arrest bail. It is trite that for the purpose of recovery , the arrest of the petitioners/accused is not necessary as this purpose can be effected by obtaining search warrant by the Investigating Officer. At this stage, I am of the view that if the petitioners are sent behind the bars, it will cause irreparable loss to their reputation.

5. For the reasons recorded above, this petition is allowed. In ad-interim pre-arrest bail already granted to the Petitioners No, 1, 3 & 4 by this Court vide order dated 15.11.2018, is hereby confirmed subject to furnishing of fresh bail bonds in the sum of Rs. 1,000,000/- Rs. One million only) to include all the mate members of the accused party in this case. Almost 15 persons were involved in the occurrence and all of them are related inter-se. The Petitioner No,1 Maqbool was attributed the role of causing a sota blow on the head, of injured witness, Haider which injury was declared as falling within the definition of Shajja-i-Khafifah ( 337-A(i)) PPC which is a bailable offence as per the Schedule II of the Code of Criminal Procedure, 1898. The common object and formation of unlawful assembly shall be finally determined by the learned trial Court. The investigation of this case is completed and the Investigating Officer has already verified the stance of the petitioners as well as the complainant. Learned counsel for the complainant has vehemently argued that recovery of weapon of offence is to he effected from the petitioners and hence they do not deserve to be granted extraordinary relief of pre-arrest bail. It is trite that for the purpose of recovery , the arrest of the petitioners/accused is not necessary as this purpose can be effected by obtaining search warrant by the Investigating Officer. At this stage, I am of the view that if the petitioners are sent behind the bars, it will cause irreparable loss to their reputation.

5. For the reasons recorded above, this petition is allowed and ad-interim pre-arrest bail already granted to the Petitioners No,1, 3 & 4 by this Court vide order dated 15.11.2018, is hereby confirmed subject to furnishing of fresh bail bonds in the sum of Rs.1,000,000/- (Rs. One million only) each with two suretie s each in the like amount to the satisfaction of learned trial Court.

6. Needless to mention that observations made in the above order are tentative in nature and shall not influence the trial Court, in any manner .