ASIF Versus State

ORDER

M. BILAL KHAN, J.--- The petitioner Asif son of Muhammad Sharif seeks post-arrest bail in case F.I.R. No.179 of 2005 dated 23-11-2005 registered at Police Station Nawan Lahore, District Toba Tek Singh, for offences under sections 302, 324, 337-A(i), 337-F(i), 337-L(ii), 34, P.P.C.

2. This order will also dispose of Criminal Miscellaneous No.2861/B of 2006 whereby, Abdul Hameed alias Kala son of Muhammad Rafique, a co-accused of Asif son of Muhammad Sharif has sought post-arrest bail in the same case.

3. The case of the prosecution as it unfolded in the F.I.R. registered at the instance of Nisar Ahmed son of Muhammad Ibrahim complainant was that on 22-11-2005 in the evening his sons Nasir Ahmed and Muhammad Ahmed were proceeding towards Adda Dharam

Kot from their house; on the way Shabbir son of Rafique, Abdul Hameed alias Kala son of Muhammad Rafique (petitioner) both of them armed with fire-arms Asif son of Muhammad Sharif (petitioner) armed with a wire-like chain all residents of Chak No.278/G.B., sitting in ambush suddenly emerged from a shop; Abdul Hameed alias Kala and Asif raised Lalkaras that Nasir Ahmed and Muhammad Ahmed, would not escape whereupon Shabbir fired with his fire-arm hitting Nasir Ahmed, on the upper part of his thigh near testes who fell down besmeared in blood; Muhammad Ahmed tried to rescue his brother whereupon Abdul Hameed alias Kala delivered blows with wire-like chain on his head; Asif also delivered blow with the butt of his fire-arm on the head of Muhammad Ahmed; Muhammad Ahmed was seriously injured; Naseer Ahmed and Muhammad Ahmed fell down on the ground; the entire incident was witnessed by Imtiaz Ahmed son of Nisai Ahmed, Muhammad Riaz son of Muhammad Tufail residents of Deh; both Shabbir and Asif kept on firing and raising Lalkaras that nobody would be allowed to lift the dead body; all three of the accused kept dragging the injured Naseer Ahmed and Muhammad Ahmed towards their shop in a most inhuman manner; they kept on injuring the victim for half an hour and also indulged in firing. The incident had taken place at the behest of Zahid son of Sharif; four days prior to the occurrence Zahid had ordered Shabbir, Hameed, and Asif to do away with Naseer Ahmed and Muhammad Ahmed as early as possible; Zahid was overheard by Rana Rasheed Ahmed and Muhammad Boota son of Khushi Muhammad.

4. The motive according to the complainant was that a few days before the occurrence the accused persons ha& an altercation with Naseer Ahmed and it was due to that grudge that all the three accused persons by mutual consultation and deliberation after arming themselves with fire-arms had murdered Naseer Ahmed and injured Muhammad Ahmed. Resultantly the instant F.I.R. had been recorded.

4-A. Asif son of Muhammad Sharif petitioner applied for his post-arrest bail, which was turned down by the learned Additional Sessions Judge, Gojra vide order, dated 31-3-2006. Likewise post-arrest bail application of Abdul Hameed alias Kala petitioner was turned down by the learned Additional Sessions Judge, Gojra vide order, dated 25-3-2006. Hence the instant petition.

5. I have heard Sardar Khurram Latif Khan Khosa, Advocate for the petitioner, Ms. Yasmeen Kanwal, Advocate for the State in Criminal Miscellaneous No.2651/B of 2006, Rana M. Shafique, Advocate for the petitioner and Mr. Sohail Irshad Warraich, Advocate for the State in Criminal Miscellaneous No.2861/B of 2006, Mr. Aman Ullah Khan Niazi, Advocate for the complainant in both the cases and perused the record brought by Muhammad Siddiquc A.S.-1. Police Station Nawan Lahore, District Toba Tek Singh.

6. It has been observed that the fatal injury to Naseer Ahmed deceased had been attributed to Shabbir co-accused of the petitioners. The role attributed to Asif petitioner was that he had caused blows with the butt of his fire-arm on the head of Muhammad Ahmed, whereas the role attributed to Abdul Hameed alias Kala was that he had caused blows with wire-like chain on the head of Muhammad Ahmed. Although according to the complainant, Asif petitioner was armed with a wire-like chain but a .30 bore pistol was allegedly recovered from him. There were six injuries allegedly suffered by Muhammad Ahmed, out of which injuries Nos.1 and 2 were Shajjah-i-Khafifah falling under section 337-A(i), injuries Nos.3, 4 and 5 were Ghayr Jaifah Damiyah falling under section 337-F(i) whereas the 6th injury was under section 337-L(ii). The offences under sections 337-A(i), 337-F(i) and 337-L(ii) are bailable. According to the prosecution's own case the petitioners who were armed with lethal weapons had not caused any injury to the deceased. The nature of the injuries suffered allegedly at the hands of the petitioners by Muhammad Ahmed P.W. has already been mentioned hereinabove.

7. Keeping in view the nature of the injuries suffered by Muhammad Ahmed and the fact that the petitioners had contented with causing only nominal damage to a P.W. the applicability of section 324, P.P.C. calls for further probe. Likewise keeping in view the fact that they had not caused any injury to the deceased, their liability under section 34 of the P.P.C. will also be a matter of further inquiry within the contemplation of subsection (2) of section 497, Cr.P.C. It is now well-settled that the mere fact that the trial has commenced or is likely to commence will not deter this Court to extend concession of bail, if the petitioners otherwise are entitled to the same on merits.

8. Resultantly this petition is allowed and both the petitioners are admitted to bail subject to their furnishing bail bonds in the sum of Rs.50,000 each with two sureties each in the like amount to the satisfaction of the learned trial Court.

H.B.T./A- 124/L Bail granted.