2004 PLP 2177 (YLR)

BAIL.A beacon of light, A sigh of relief, and A sign of release, for an innocent accused, who is oppressed, depressed and has been roped in a false case, whose case falls within the purview of further inquiry, or whose conviction, prima facie, appears improbable on the record, or there are reasonable grounds to hold the story doubtful as narrated by the informant. In such case, the accused, who has been involved in the case trust be granted the bail ungrudgingly.

2. A written application by Muhammad Ashraf son of Muhammad Qasim caused the commencement of an action for the police of Police Station Shedani Sharif, District Rahimyar Khan. After copying that narration into F.I.R. No.360 of 2003 on 26‑9‑2003, with regard to commission of offence having come into existence under section 302/34, P.P.C., the police took special efforts to bring out the accused allegedly involved in the case.

3. The incident as revealed from the F.I.R. gives out the details as follows:‑‑ Muhammad Ashfaq, Secretary Union, Council Shedani Sharif, who was brother of the informant, had gone to his office on the morning of 25th September, 2003 but had, not returned till the evening. One Muhammad Asif, nephew of the informant, informed the aforesaid Muhammad Ashraf that Muhammad Ashfaq, his uncle was seen in the company of Muhammad Afzal Khan son of Ghulam Qadir Khan while riding upon a motorcycle and proceeding to Azeem Pur village from Adda Shedani Sharif at about.5‑00 p.m. The informant further stated that his brother Muhammad Ashfaq used to visit Muhammad Afzal and Muhammad Akram'Dahir oftenly. On 26‑9‑2003 at about 1‑30 p.m.' Muhammad Azam Dahir had informed the complainant that his brother Muhammad Ashfaq had drowned in the river. So, upon hearing this news, the informant proceeded towards the river alongwith Muhammad Asif, Muhammad Jamil and many other persons upon motorcycles. When they had reached near Minchin Band within the area of. Mauza Ahmad Ali Lar, Muhammad Arshad son of Hakim Muhammad Asif and Niaz Ahmad son of Bashir Ahmad met them and had enquired from them as to where they were proceeding. Upon their asking, the informant told them the news of drowning of Muhammad Ashfaq in the river. At this juncture, the aforesaid persons (Muhammad Arshad and Niaz Ahmad) stated that a short while ago, they had seen Muhammad Ashfaq with Muhammad Afzal and Muhammad Akram sons of Ghulam Qadir, Caste Dahir and Umar son of Jam Faiz, caste Mochi, residents of Mauza Ahifiad Ali Lar standing near the Waheera and residence of Umas Fauji. The informant averred in his application that he had strong suspicion that his brother was murdered by Muhammad Afzal, Muhammad Akram Dahir and Umar Fauji with consultations and with common intention and thereafter they had thrown away his dead body in the Waheera of the river. To support his version, the informant had also given out the motive by stating that Muhammad Afzal Dahir had dubiety in his mind that his brother Muhammad Ashfaq had got illicit relations with the wife of Muhammad Afzal Dahir. So, the murder of his brother was committed. After hectic efforts, the dead body was recovered from the river and after entrusting its supervision, the informant was there at police station to lodge this report.

4. After the receipt of this information, the police came into action and got the dead body examined through post mortem from the Medical Officer of Rural Health Centre, Khan Bela. According to the post‑mortem report, left eye‑ball was found absent from the socket, reddish blood was seen in the empty fossa. Some multiple irregular small incised and one lacerated wounds marks were also found in the post‑mortem report but the doctor could not opine with certainty as to what was the cause of the death of the deceased. Various viseras of the dead body of the deceased were taken and sent to the Bacteriologist and Histopathologist for report and the determination of final cause was to be made after their reports.

5. The learned counsel appearing on behalf of the petitioners pleaded the innocence of the accused‑petitioners on the basis of different investigations, which were conducted by various Investigating Officers at four distant times. In the first investigation report on 19‑10‑2003, Muhammad Aslam, S.‑I. found the petitioners innocent. Afterwards Shahbaz Hussain, Inspector endorsed this view on 20‑12‑2003, One Ghulam Farid, D.S.P. came to the same conclusion and reported with such vision. In another investigation by Abdul Hafeez, D.S.P. they were also exonerated from the charge of commission of the murder of the deceased. It has further been stated that all the persons were arrested on 7‑10‑2003 and since then they are rottening in the jail without, any material progress in the investigation or in the trial of the case. The learned counsel appearing on behalf of the petitioners has also urged that the petitioners are innocent who are being kept behind the bars due to the efforts of the complainant without any lawful justification and there is no incriminating evidence against the petitioners with regard to the commission of alleged offence. The passing reference in the F.I.R. by the informant while proceeding to recover the dead body of the deceased from the river, made by Muhammad Arshad and Niaz Ahmad, as per the learned counsel, was a concocted one, to display and prove the implication of the petitioners through a last seen evidence, which was itself a highly improbable story with regard to the company of the deceased with the accused from these two witnesses. According to the learned counsel, this weakest piece of evidence was not sufficient to keep the petitioners in jail indefinitely especially when four Investigating Officers had found them innocent. Even the learned counsel challenged the validity of that last seen evidence on the point that no time and exact place was stated by those witnesses and even the last seen evidence was incredible from the facts and circumstances of the case. Relying on Muhammad Ali and 2 others v. The State 1988 PCr. LJ 722 and Mst. Iram Gul alias Komil Ijaz alias Aini v. The State 2003 YLR 3185, the learned counsel stated that the last seen evidence in this case was not of such nature, which should be made basis to keep the petitioners in jail. It was further stated that ipse dixit of the police and placement of the petitioners in Column No.2 of the challan was found sufficient to grant concession of bail in Muhammad Mumtaz and 3 others v. The State 1988 SCMR 1452. The learned counsel for the petitioners also placed reliance on Sabzal alias Sozoo v. The State 2002 PCr.LJ 220.

6. The bail has vehemently been opposed by learned counsel for the State as well as by learned counsel for the complainant/informant. According to the learned counsel, the concession of bail cannot be granted on mere opinion rendered by the police. They have relied upon Mst. Qudrat Bibi v. Muhammad Iqbal and another 2003 SCMR 68 and Muhammad Din v. The State 1998 SCMR

1. As to the last seen evidence they have sought support from Zaheer alias Fauji v. The State 2002 PCr.LJ 1114 and Sajid and 2 others v. The State 1998 PCr.LJ 1455. The learned counsel have also requested that a Committee of Additional. S,P. (Investigations), D.S.Ps., Saddar and Headquarters and A.S.P., City Circle, has been formed to further investigate the matter into the commission of the offence, therefore, the bail should not be granted to the petitioners till the final opinion of that panel.

7. After hearing the forceful arguments of the learned counsel for the parties and consulting the record, the following conclusions have been drawn by me:‑‑ (i) According to the F.I.R. there is only last seen evidence of two persons namely, Muhammad Arshad and Niaz Ahmad, which prima facie, does not seem to be of such nature as to connect the petitioners with certainty in the alleged murder of the deceased. This fact has yet to be probed into by the, investigating agency and by B the learned trial Court. There is apparently no other material or other important evidence to establish any linkage with the commission of offence by the petitioners at this stage. It is settled that last seen evidence is the weakest piece of evidence, the corroboration and soundness of which would be established during the trial. I have already delivered a judgment on this proposition and have granted bail on this point which can be referred here as Criminal Miscellaneous No.900‑B of 2003/BWP (Abdul Ghaffar v. The State). (ii) The reports/findings of different Investigating Officers at four various stages entitle the petitioners to the concession of bail at least till the final determination of their guilt by any other Investigating Agency or by the trial Court. At this stage, there is no incriminating evidence with regard to their guilt as has been found by the prosecution. (iii) The formation and constitution of the panel of high ranking Police Officers itself shows that the accused‑petitioners have still not been found involved in the murder of the deceased. (iv) The post‑mortem report does not connect the petitioners with the commission of offence. The report has also not in precise terms given out the cause of death.

8. Therefore, considering all these material facts, circumstances, documents and arguments of the learned counsel for the parties, I accept this application and grant the petitioners post‑arrest bail subject to their furnishing bail bonds in the sum of Rs.1,00,000 (One hundred thousand rupees) each with two sureties each in the like amount to the satisfaction of the learned Additional Sessions Judge, Liaqatpur.

9. However, it may be clarified that the observations/remarks contained in this order shall not he considered to prejudice the case of any party at the investigation or at trial stage of the case. H.B.T./M‑67/L Bail granted.