2009 PLP 2159 (YLR)

Muhammad Iqbal, the petitioner, by submitting this application has prayed for the concession of bail after arrest in case F.I.R. No.635/2008 dated 12-8-2008 registered at Police Station Thikriwala, District Faisalabad, in respect of offences under sections 302/109, P.P.C.

2. Briefly, the prosecution story as unfolded in the F.I.R, lodged on the statement of Muhammad Ashraf, complainant, is that some unknown murderer(s) strangled his brother, namely, Muhammad Arshad to death by using string of his Shalwar/trouser in an unseen crime committed at sometime between 11th and 12th August, 2008 in the area of Chak No.74 J.B.. The complainant further claimed that Mst. Bushra Bibi, the wife of Muhammad Arshad (slain), who according to the complainant is a woman of easy virtues, used to quarrel with her husband, i.e. Muhammad Arshad (deceased), therefore, according to the complainant the murder of his brother was committed with her (Bushra Bibi's) abetment/instigation.

3. During the investigation two people namely Shaukat Ali and Muhammad Sarfraz appeared before the Investigating Officer and got their statements recorded under section 161, Cr.P.C. claiming therein that 3/4 days prior to the occurrence while passing by a Dhaari, they heard Mst. Bushra Bibi, wife of Muhammad Arshad (slain), asking Muhammad Iqbal the present petitioner to eliminate Muhammad Arshad who was a hindrance in their extra-marital relations. On the basis of the said evidence the petitioner was implicated in this case as the main perpetrator of the crime. 3-A. In support of this petition learned counsel for the petitioner has contended that the petitioner is not the nominated accused of the F.I.R. rather he was implicated in this case on the basis of the evidence which was fabricated after the registration of the case, mala fidely; that the manner in which Muhammad Sarfraz and Shaukat Ali, the P.Ws, heard tete-a-tete, like a fly on the wall, is not believable and that admittedly the witnesses who allegedly heard the hatching of the conspiracy between Mst. Bushra Bibi any Muhammad Iqbal did not lodge any complaint with the police, a fact which makes their version unbelievable.

4. Conversely, learned Deputy Prosecutor-General, assisted by the learned counsel for the complainant, has opposed the bail application by contending that the contentions raised by the learned- counsel for the petitioner calls for deeper appreciation of evidence which is not permissible at this stage; that the charge has already been framed and now the case is fixed for evidence before the learned trial Court and that the offence with which the petitioner has been charged falls within the prohibitory clause of section 497, Cr.P.C., therefore, he is not entitled to the concession of bail.

5. Heard. Record perused.

6. Admittedly Muhammad Arshad was strangled to death by unknown person(s). Further, the said crime was an un-witnessed affair. It is also admitted fact that while lodging the F.I.R. the complainant failed to nominate the petitioner as a perpetrator of the crime. However, he claimed that his brother was done to death on the abetment of his wife-Bushra, Bibi-who according to the complainant, was having a questionable character. The contents of the F.I.R. reveal that till the lodging of the F.I.R. it was not claimed by the complainant that the petitioner had extra-marital relations with Mst. Bushra Bibi, the co-accused. However on the second day of the lodging of the F.I.R. two people namely Muhammad Sarfraz and Shaukat Ali came forward with a claim that 3/4 days before the occurrence they had heard a tete-a-tete between Mst. Bushra Bibi and Muhammad Iqbal who were sitting in a Dhaari. While making their statements under section 161, Cr.P.C. before the Investigating Officer, they gave a detailed version of the conspiracy which statedly was heard by them while passing near the said Dharri. In the peculiar circumstances of the case, the claim of the said witnesses of hearing the hatching of conspiracy calls for further enquiry within the purview of section 497(2), Cr.P.C. especially when it is seen in the perspective that the said witnesses never reported the said villainous/dangerous design/plot, made by the accused, to any person what to talk of police. It is also an established law that benefit of doubt can be given to the accused even at bail stage. After making out a case of further enquiry the petitioner has become entitled to bail as a matter of right. Insofar as the contention of the learned counsel for the complainant with regard to commencement of the trial is concerned, suffice it to observe that after making out a case of further enquiry, an accused cannot be denied bail merely on the ground of commencement of trial, Reliance in this regard is placed on the case of Muhammad Umar v. The State & another (PLD 2004 SC 477) and Muhammad Ismeel v. Muhammad Rafique and another (PLD 1989 SC 585).

7. Consequently, the application in hand is accepted and the petitioner is granted bail after arrest subject to his furnishing bail bonds in a sum of Rs.1,00,000 (Rupees one hundred thousand) with two sureties each in the like amount to the satisfaction of the learned trial Court. H.B.T./M-486/L????????????????????????????????????????????????????????????????????????????????????????????? Bail grante