2007 PLP 1662 (YLR)

TARIQ SHAMIM, J.

Through this petition the petitioner seeks bail before arrest in case F.I.R. No.273, dated 21-4-2006 for offence under section 302, P.P.C. registered at Police Station Township Lahore.

2. The brief facts of the case are that Faryad Khan, Sub-Inspector while on routine patrol duty, received an information 'that a dead body was lying on the side of Ganda Nala near a House bearing No.23-B and on receiving the said information the Sub-Inspector along with police officials reached the spot where he found the dead body of a young girl. There was sign of strangulation on the neck of the deceased and blood was oozing out of-her nose. The complainant after coming to the conclusion that the young girl was murdered got registered the aforesaid F.I.R. against the unknown persons.

3. Learned counsel for the petitioner contended that the petitioner was neither named in the F.I.R., nor any role had been assigned to him and had been involved in the case on the supplementary statement made by the complainant after a lapse of about 8 days; that the case was investigated by the S.P. (Investigation) who found the petitioner innocent and opined that the occurrence as un-witnessed and the actual culprits/accused were not known. Subsequently the matter was investigated by Inspector (Investigation) who concluded that the petitioner was involved only to the extent of abetment of the offence and had not actually participated in the murder of the deceased. Further contended that there was no evidence of conspiracy or abetment against the petitioner and that the post-mortem report also reveals that the deceased had not been subjected to sexual assault. Lastly maintained that the record reveals that prima facie there is no evidence available against the petitioner to connect him with the commission of offence of murder of the deceased, hence the petitioner was entitled to the grant of pre-arrest bail.

4. On the other hand, learned counsel appearing on behalf of the State contended that the petitioner was nominated in the supplementary statement and during the course of investigation he was found to be involved to the extent of abetment. Further contended that no mala fide had been alleged against the complainant or the police by the petitioner and the offence being punishable with capital sentence, the petitioner is not entitled to the concession of bail.

5. I have heard the learned counsel for the parties and perused the record.

6. The deceased was a maid servant in the house of the brother of the petitioner namely Azhar Malik and during investigation it transpired that the actual culprit who committed the murder of the deceased was Abid Ali who is under arrest. The only allegation against the petitioner is that of abetment without there being any material to substantiate the same. The allegation against the brother of the petitioner is that he provided his house where the offence was allegedly committed. The petitioner has been involved on a supplementary statement made by the complainant after a lapse of about 8 days which cannot be relied upon as the same creates doubts about the authenticity of the prosecution case. Even otherwise, there is no provision under the law regarding recording of supplementary statement as it amounts to filling the lacunas in the prosecution case. Reference is made to the case of Mubarak Ali v. The State (2003 PCr.LJ 986). The petitioner was declared innocent by the S.P. Investigation who observed that the accused/culprits were not known. Even in the subsequent investigation conducted by the Inspector (Investigation) it was found that the petitioner was involved only to the extent of conspiracy/abetment. Although the opinion of the police is not binding on the Court, however, if it is based on material, it carries persuasive value and cannot be lightly brushed aside. Further, the investigation is complete and the petitioner is no more required by the police, therefore, sending the petitioner to jail at this stage would not serve any useful purpose. Prima facie there is no direct evidence on the record at present to connect the petitioner with the commission of offence alleged against him.

7. Resultantly, this petition is allowed and ad interim pre-arrest bail granted to the petitioner vide order dated 27-7-2006 is confirmed subject to his furnishing fresh bail bond in the sum of Rs.50,000 with one surety in the like amount to the satisfaction of the trial Court. H.B.T./Z-26/L Bail confirmed.