MUHAMMAD NAZIR vs THE STATE

' Due to the dispute of making of some applications against the accused party by the complainant party, it was on 20-8-1999 at 5-00 p.m. That an occurrence took place in front of the Public Call Office being run by Muhammad Ashfaq. Muhammad Nazir petitioner-accused alongwith his co- accused Muhammad Irfan alias Bagu each armed with carbine as well as his co-accused Nawaz alias Goni and Riaz each armed with 30-bore pistol and Asghar armed with Sota surprised Sana Ullah complainant with whom Zaka Ullah and Muhammad Ashfaq were also going. Muhammad Nazir petitioner-accused is said to have raised the Lalkara to murder Zaka Ullah and Muhammad Ashfaq. Riaz gave the butt blow of the pistol on the head of Muhamamd Ashfaq. Asghar gave the sota blow on the head of Muhammad Ashfaq who fell down. The complainant and Zaka Ullah started running when Nawaz fired with his pistol which hit the right leg of Zaka Ullah who fell down.

Sana Ullah complainant, Ehsan Ullah, Nasir Mahmood and Asif Mahmood are said to have seen the occurrence. The accused persons also effected the aerial firing. About the occurrence F.I.R. No,176 dated 20-8-1999 stands registered at Police Station Bambanwala District Sialkot under section 302/324/148/149, P.P.C.

2. The law was set in motion. The police investigation has been completed. Muhammad Nazir petitioner-accused was arrested who remained under police custody but no recovery was effected at his instance. His bail application has been dismissed by the learned Additional Sessions Judge who has filed this petition before this Court with the same desire.

3. I have heard the learned counsel for the petitioner as well as the learned State council and gone through the record before me. Learned counsel for the petitioner argued that only the role of Lalkara has been attributed to Muhammad Nazir petitioner-accused who is the father of Riaz, Bagu and Muhamamd Nawaz alias Goni co-accused who did not practically participate in the occurrence, and thus, his involvement is a question of further inquiry. According to him Muhammad Nazir petitioner has falsely been roped in to put the pressure on the family. On the contrary learned State counsel laid the emphasis that Muhammad Nazir is the father of three co-accused and commanding Lalkara has been attributed to him who is not entitled to be admitted to bail. He laid the emphasis that after completion of the investigation Muhammad Nazir petitioner-accused has been challaned by the police while submitting the challan indictment under section 173 of the Code of Criminal Procedure who prima facie is liable in this murder case, and thus, is not entitled to be admitted to bail.

4. I hold the view that the reasoning adopted by the learned counsel for Muhammad Nazir petitioner-accused has to prevail. The fact of the matter is that Muhammad Nazir even though armed with carbine did not use the same and did not fire at any person. No doubt he is, the father of three co-accused this aspect would not make him disentitled to enjoy the concession of bail.

There is no motive of past criminal litigation and the Lalkara attributed to him cannot be said to be that of commanding nature.am of the confirmed view that due to the fact that Muhammad Nazir did not practically participate in the occurrence and no overt act is attributed to him, his involvement is a question of further inquiry. The reasoning adopted by the learned State council that Muhammad Nazir petitioner has been challaned by the police and for that matter is prima facie liable in this case need not be given the weight. During the recent past the trend is being projected by the prosecution, the trial Courts and the complainants of criminal cases due to the fact that the accused has been challaned in a non-bailable offence he is not entitled to be admitted to bail. This reasoning has no legal weight as a bail application has to be disposed of within the framework of section 497 of the Code of Criminal Procedure. Even after an accused is challaned the bail application is competent and the same can be accepted within the limits of law.

If this assertion is given the weight the same would lay the foundation of injustice and further it can safely be expressed that section 497 of the Code of Criminal Procedure shall simply become redundant. This is not the intention of law. Keeping in view the aforesaid aspects of the matter the petitioner is entitled to enjoy the concession of bail within the framework of section 497 of the Code of Criminal Procedure.

5. For what has been said above, I accept this application and admit Muhammad Nazir petitioner- accused to bail in the sum of Rs,1,00,000 (Rupees One Lac only) with one surety in the like amount to the satisfaction of the learned Sessions Judge, Sialkot with the direction to appear before the learned trial Court on every date of hearing failing which the learned trial Court may cancel his bail and, proceed further in accordance with law.