HAJI HUSSAIN Versus STATE
ORDER
Heard.
2. For causing/committing double murder of Zahoor Ahmad and Mst. Sughran; in the background of an igniting motive and allegedly at the behest and instigation of Haji Hussain, Ghulam Hassan, Manzoor Ahmad and Muhammad Aslam, a case, under sections 302/380/148/149/109 and 201, P.P.C. stands registered at Police Station Sadar Bahawalpur vide F.I.R. 153 of 1996 dated 21‑7‑1996 against them and their co‑accused namely, Muhammad Ashraf alias Sheri, Zahoor Ahmad, Nazeer Ahmad, Muhammad Akram, Bilal, Muhammad Nawaz, Muhammad Iqbal, and Mukhtar alias Maria.
3. Entire episode, as gleaned out and reflected of F.I.R., which of‑course, set the law into motion, need not be re‑capitulated as only allegation against petitioners, who, seek to be admitted to bail through instant application, is to the effect that the occurrence/incident was the result of conspiracy hatched by three petitioners and Manzoor Ahmad, as indicated above.
4. Concession, asked for, has been claimed on the grounds enumerated in paragraphs Nos.2 to 11 of application. With reference thereto, it has been contended, inter alia, of course, with vehemence that, in any event, there are sufficient grounds for further inquiry into the guilt of petitioners attracting subsection (2) of section 497, Cr.P.C., On pointation of having been declared to be innocent during investigation conducted by D.S.P. Dr. Muhammad Aslam v. The State (1993 SCMR 2288), Muhammad Hussain v. the State (1996 SCMR 73), Abdur Rehman v. The State (1994 P.CrI.J. 1020), Miran Bakhsh v. The State (1989 SC 34 (Sic)), Syed Aman Ullah v. The State (PLD 1996 SC 241) and Muhammad Akram v. The State (1992 P.Cr.L.J. 1617) have been referred to stress that, in such eventuality, petitioners' participation in the offence, prima facie becomes doubtful, even conflicting findings ought to be resolved in favour of an accused and in any case . renders 'the case to be of "further inquiry".
5. It has been opposed and resisted vigorously with the assertions that the petitioners are vicariously liable for the act of the principle accused, who is still at large, Courts are not bound to believe and rely on "ipse dixit" of police and such material cannot entail benefit of provisions relateable to cases which warrant further inquiry. Reliance has been placed upon Syed Ikhlaq Hussain Shah v. The State, (1997 P.Cr. L.J. 610), Maulvi Ashiq Hussain and others v. The State (1995 P.Cr.L.J. 131), Syed Ikhlaq Hussain and others v. The State (1995 PCr.LJ 1114) and Nazir Baig alias Jahangir Baig v. Muhammad Anwar and another (1994 SCMR 451), in support of the submissions.
6. There is no cavil with the fact that in the investigation, so far, carried out, the petitioners, have been found to be innocent inasmuch as no incriminating material has been collected against them. As expounded in Syed Amnaullah Shah v. The State (PLD 1996 SC 241), Abdullah Khan v. Abdul Qayyum and another (1996 SCMR 493), Muhammad Siddiq v, The State (1997 P.Cr.L.J. 143) and Syed Qaim Ali Shah v. The State (1992 P.Cr.L.J. 9) alleged conspirator or abettor not present on spot, like petitioners, is entitled to bail as his case stands on lower footing than persons, who, happen to be present at the spot and raise Lalkara. As enunciated in James Sardar and another v. The State (1996 PCr.LJ 1422) nothing can be said at this stage as to whether the principal E accused, at the.time of occurrence had acted independently or under the influence of present petitioners, unless evidence to reach any definite conclusion is recorded.
7. According to subsection (2) of section 497, Cr.P.C. where there are reasonable grounds for believing that the accused has committed a non‑bailable offence, but, there, are sufficient grounds for further inquiry into his guilt, the accused shall, pending such inquiry, be released on bail. While interpreting the above provisions in the case of Arbab Ali v. Khamiso and others (1985 SCMR 195) it was held by august Supreme Court that bail can be allowed in a case otherwise allegedly falling under the prohibition contained in subsection (1) of section 497, Cr.P.C. into the guilt of the accused.
8. Apart from that, factors, that Muhammad Rafiq, and Nazeer Ahmad, both witnesses on the point of abetment/ instigation are real brothers; there is no independent evidence, site plan is bereft of mention of petitioners, Haii Hussain and Ghulam Hassan are aged persons, their case falls within the ambit and compass of provisos to section 497 (1), Cr.P.C., and no motive or any other overt act has been ascribed to them, cannot be lightly ignored and brushed aside. Undoubtedly, they are behind the bars for the last about ten months. Investigation has not yet been finalised, what to, speak of, submission of challan in Court, commencement and conclusion of the trial. In these circumstances the petitioners cannot be allowed to incarcerate for an indefinite period, on mere fact that they are closely related to principal accused, who, is still absconder.
9. Consequently, application is accepted and the petitioners are admitted to bail in the sum of Rs.1,00,000 (one lac) each with two sureties each in the like amount to the satisfaction of learned Sessions Judge, Bahawalpur.
N.H.Q./H‑27/L ??????????????????????????????????????????????????????????????????????? ?????????? Bail allowed.