JAMSHAID AHMAD vs THE STATE

ORDER

Jamshaid Ahmed, the petitioner through the instant petition has sought for after-arrest bail in case F.I.R. No.892 dated 29-10-2001 under sections 302/452/148/149/109, P.P.C. Registered with Police Station City, Muzaffargarh.

2. Briefly the prosecution case as per F.I.R. Is that on 29-10-2001 at 6-30 a.m. Jamshaid Ahmad, Irshad Ahmad alias Shada armed with .30 bore pistol, Mumtaz, Mushtaq Ahmad, Shada Tharre and Muhammad Sharif, A.S.-I. Having lethal weapons trespassed into the haveli of Shah Muhammad the maternal uncle of the complainant. Sajjad Ahmad, his son was sleeping in the drawing room there. On hearing sound of entry of those persons in the house, he (Sajjad Ahmad) came to the courtyard of the same through window. Jamshaid Ahmad asked his brother Shada do not spare him. On the same, Shada tired with .30 bore pistol at him which hit him near his left armpit and went through the back of his chest. He fell down and died at the spot. The accused decamped from the scene by firing in the air.

3. It has been contended on his behalf that he has falsely been roped in due to enmity; that mere Lalkara is ascribed to him in the commission of crime and no overt act while his co-accused almost in similar situation has been allowed bail by my learned brother Muhammad Farrukh Mahmud, J. Though he was refused pre-arrest bail but considerations for grant of such bail are different than after-arrest bail; that he is behind the bars and that he is previous non---convict.

4. On the other hand, the learned counsel for the State assisted by the learned counsel for the complainant has opposed the petition on the ground that he is named in the F.I.R. That Lalkara is attributed to him and it in fact was of the nature of command made by him, to his brother to do away with the deceased and not merely proverbial; that he was refused pre-arrest bail by my learned brother Muhammad Farrukh Mahmud, J. On 12-4-2002; that his case is different than his co-accused Mushtaq to whom bail has been granted; that he has remained absconder for about six months and this weighs against him in the matter of grant of bail; that his trial has commenced and m the same few P.Ws. Have been examined; that offence falls within the prohibitory clause of section 497, Cr.P.C.; and that he has remained involved in other cases.

5. I have carefully considered the submissions advanced by both the learned counsel for the parties and perused the record.

6. The only role attributed to him is of Lalkara and no overt act. The question of his vicariously liability is to be determined at the time of trial. His case, therefore, is covered under subsection (2) of section 497, Cr.P.C. Requiring further inquiry into his guilt.

7. On 12-4-2001, my learned brother Muhammad Farrukh Mahmud, J. In Criminal Miscellaneous No.1010-B 2002 has declined him pre-arrest bail. I may mention here that considerations for pre- arrest are different than the one for after-arrest bail. He is behind the bars for the last more than seven months. He is stated to be previous non-convict. The same has not been disputed by the prosecution side. He, if is involved in other cases, the same cannot be a ground for refusal of bail to him. In this regard reference is made to the case of Muhammad Rafique v. The State (1997 SCM R 412).

8. It is also settled proposition in law that if the case of the accused is otherwise found fit for bail on merits, he cannot be refused bail even, if he has remained absconder. While, it may be mentioned here that it has not been shown from the record by the prosecution's side that he in fact has been declared so.

The commencement of trial is not a clog in the way of grant of bail when an accused is found entitled to the same. In this regard reference is made to the case of Munir v. The State (2002 M LD 712) Lahore and Muhammad Ismail v. Muhammad Rafique and another (PLD 1989 Supreme Court 585).

10. In these circumstances, I find him entitled to bail. The petition is, therefore, accepted and he is admitted to bail provided he furnishes bail bonds in the sum of Rs.1,00,000 (Rupees one lac) with two sureties each in the like amount to the satisfaction of the learned trial Court.