FIDA HUSSAIN Versus State

ORDER

Crl. Misc. No. 01 of 2021.

MALIK SHAHZAD AHMAD KHAN, J.- --This is an application for placing certain documents on the record, the same is allowed subject to all just and legal exceptions. C.M. stands disposed of.

Main Case. (Cr1. Misc. No. 1191-B of 2021).

2. The petitioner, namely, Fida Hussain through the instant petition seeks pre-arrest bail in case FIR No. 338 dated 19.11.2020 registered at Police Station Piplan District Mianwali offences under sections 302/324/109/34 of P.P.C.

3. Arguments heard. Record perused.

4. As per brief allegations levelled in the FIR, on 19.11.2020, a quarrel took place on mobile phone between the petitioner and Muhammad Saleem deceased over installation of a volley ball net in the house of one Sher Azam. Co-accused of the petitioner thereafter, committed the murder of abovementioned Muhammad Saleem and Muhammad Ijaz and caused injuries to Muhammad Ishaq and Sanwal Saleem PWs. As per contents of the FIR, the petitioner also remained at the spot at the time of occurrence while armed with firearm in order to protect his co-accused. Hence, the abovementioned FIR.

5. The petitioner has not been assigned the role of causing any injury on the body of abovementioned two deceased persons or on the body of any prosecution witness. Mere presence of the petitioner at the spot by itself is not sufficient to refuse the relief of pre-arrest bail to him. As per contents of the FIR, the petitioner was only present while armed with firearm at the spot at the time of occurrence and had the petitioner any intention to commit the murder of abovementioned deceased persons or cause injury to any member of the complainant party then he could have used his firearm weapon at the time of occurrence therefore, question of vicarious liability of the petitioner requires further probe and inquiry. Reliance in this respect may be placed on the cases of 'Muhammad Shakeel v. The State and others' (PLD 2014 Supreme Court 458), 'Muhammad Murad and others v. The State and others' (2009 SCMR 348) and 'Subeh Sadiq alias Saabo alias Kalu v. The State and others' (2011 SCMR 1543). Although it is argued by learned counsel for the complainant that mobile phone data of the petitioner and Muhammad Saleem deceased has been collected in this case which shows that the petitioner made a telephone call to Muhammad Saleem deceased prior to the occurrence on mobile phone but admittedly, no recording of the mobile phone is available in this case to establish that any quarrel took place between the petitioner and Muhammad Saleem deceased prior to the occurrence. The petitioner and the complainant are closely related to each other and admittedly, the petitioner is maternal uncle of the complainant, as well as, Muhammad Saleem deceased therefore, mere availability of call data regarding making of any call by the petitioner to Muhammad Saleem deceased by itself is not sufficient to support the allegation of quarrel levelled against the petitioner by the complainant. It is further noteworthy that the Investigating Officer vide zimni No. 27 dated 27.12.2020, has concluded that the petitioner was not present at the spot at the time of occurrence rather he was in the house of Mohsin co-accused and Mohsin co-accused left his house for the occurrence but the petitioner remained present in his house. The abovementioned police finding is in conflict with the story narrated by the complainant in the FIR therefore, case of the prosecution against the petitioner is one of further inquiry because it will be determined by the learned trial Court after recording of evidence that as to whether the story narrated by the complainant in the FIR is true of findings of the I.O. are correct and as such, a case for grant of pre-arrest bail is made out in favour of the petitioner. Reliance in this respect may be placed on the cases of 'Syed Darbar Ali Shah and others v. The State' (2015 SCMR 879) and Nadeem v. The State and another' (2016 SCMR 1619). Possibility of mala fide involvement of the petitioner in this case by the complainant by using the wider net cannot be ruled out at this stage.

6. In the light of above, this petition is allowed and interim pre-arrest bail already granted to the petitioner is confirmed subject to his furnishing the bail bonds in the sum of Rs.500,000/- (Rupees five hundred thousand only) with one surety in the like amount to the satisfaction of the learned trial Court.

SA/F-2/L Bail granted.