SHABBIR HUSSAIN Versus STATE

ORDER

Heard.

2. Allegedly for causing Qatl‑e‑Amd of Aamar alias Guddu and inflicting injuries upon person of Saleem‑ul‑Haq and his son Sami‑ul‑Haq, a case under section 302/324/34/337‑F(i), (ii), (v), P.P.C. stands registered against the petitioner and others at Police Station Mughalpura, Lahore vide F. I. R. No. 143, dated 22‑3‑1997 lodged by Saleem‑ul‑Haq complainant.

2‑A. Occurrence is stated to have preceded an incident in which Sami‑ul‑Haq son of complainant was allegedly manhandled and accorded beating by Shahid Saeed alias Shahidi, Shabbir petitioner, Sherin and an unknown person, same day. In terms of F.I.R. unfortunate event occurred when complainant alongwith Sami‑ul‑Haq, Aamer alias Guddu and Mirza Zaka‑ul‑Haq went to the house of Muhammad Saeed to protest in respect of conduct of his son Shahid Saeed alias Shahidi.

3. Concession, sought for, has been claimed on the pleas that the petitioner's case is not only at per with that of his co‑accused namely Muhammad Saeed, already, enlarged on bail vide an order, dated 5‑3‑1998 but also on better footing entitling him to the grant of bail. Also it has been impressed that the suppression of injuries upon the person of Muhammad Saeed and Shahid Saeed, co‑accused of petitioner, not only furnishes presumption to the effect that complainant party is aggressor as expounded in Muhammad Nazir v. Muhammad Sadiq and another 1978 SCMR 171, Shehzad Sultan alias Bhola v. The State 1983 PCr.LJ 86 but also renders the case to be of "further inquiry". Touching and commenting upon various other aspects, as well, learned counsel for the petitioner has converged his arguments into main contention that the case is patently of "further inquiry" as envisaged by section 497(2), Cr.P.C. Reliance has been placed upon Muhammad Afzal and another v. The State 1979 SCMR 9, Muhammad Hussain v. Muhammad Siddique and another 1987 SCMR 861, Muhammad Shafi v. Hakam Ali and 7 others 1978 SCMR 346, Tariq Bashir and 5 others v. The State PLD 1995 SC 34 in support of contentions.

4. It has been opposed tooth and nail with the assertion that active participation of the petitioner in both the incidents is not only borne and spelled out but also he is sufficiently connected with the motive behind the occurrence. Plea of vicarious liability has been pleaded with vehemence to urge disentitlement of petitioner to the grant of bail, asked for, with the remarks that even presence of an accused at the time of alleged occurrence is sufficient to negate such claim as held in Alla‑ud‑Din and 2 others v. The State 1997 PCr.LJ 101 and Chiragh Din and others v. The State PLD 1967 SC 340. Also it has been further canvassed that case of petitioner cannot be equated with and taken to be identical with his co‑accused and the "rule of consistency" cannot be extended, come into play and pressed into service.

5. Learned counsel representing the State has also maintained that petitioner's active participation in the occurrence being sufficient spelt out, he does not deserve the grant of bail in the case, which, undoubtedly falls within prohibitory clause.

6. There can be no cavil with the settled proposition that even in a case falling within the prohibitory clause an accused is entitled to the concession of bail, if his case comes within purview of "further inquiry" as envisaged by relevant provisions of law. Shah Zaman v. The State PLD 1994 SC 65 enjoins:‑‑

"Now what will constitute as sufficient ground for further inquiry, would depend upon peculiar facts of each case and no hard and fast rule can be laid down for the purpose. Every hypothetical question which can be imagined would not make it a case of further inquiry simply for the reason that it can be answered by the trial Court subsequently after evaluation of evidence. Broadly speaking the condition laid down in clause (2) of section 497, Cr.P.C. is that there are sufficient grounds for further inquiry into his guilt which means that the question should be such which has nexus with the result of the case and may show or tend to show that accused is not guilty of the offence with which he is charged."

7. It goes without saying that no overt act towards deceased has been ascribed to the petitioner. Even no specific injury to the complainant has been attributed to him. Armed with iron pipe, blows to complainant and that too to effect release of rifle, is the role assigned to petitioner. Besides, suppression of injuries upon person of Saeed and Shahid Saeed, co‑accused of petitioner, not only pushes the matter into Cul‑De‑Sac and quagmire, but also, raises a presumption against the complainant party. All these aspects apparently entail "further inquiry" into his guilt, upon the touchstone reproduced (supra).

8. Now it is not the case of either side that any injury was suffered by the petitioner. Hence, the contention that his case is on better footing than that of his co‑accused who received palmer injury in the skirmish, cannot be taken to be wholly without substance and devoid of force. Further, "rule of consistency" is attracted with full force, in the light of illuminating observations made in Muhammad Afzal alias Bodi v. The State 1979 SCMR 9.

9. Be that as it may, even commencement, what to speak of conclusion of trial is not in sight. In these circumstances, incarceration of petitioner for an indefinite period, particularly, when he is behind the bars for the last more than one year cannot be allowed under any canon of law.

10. Taking all these aspects into consideration and "rule of consistency" in particular, application is allowed and the petitioner also is admitted to bail in the sum of Rs. 1,00,000 with two sureties in the like amount to the satisfaction of learned trial Court.

11. However, above observations will not influence appraisal of evidence and determination of points in controversy at trial.

N.H.Q./S‑254/L Bail allowed.