2005 PLP 1793 (YLR)

Ch. Irshad Ullah Chatha for the Complainant. Riasat Ali, S.-I. with Record. It is contended by the learned counsel for the petitioner that the petitioner was not named in the F.I.R., that there were two eye-witnesses, one is the complainant namely Hafiz Abdul Majid son of Hafiz Muhammad Ibrahim Saifi and other is Abdul Majeed son of Ch. Muhammad Khalid caste Arien, that petitioner was arrested on 13-11-2004, identification parade was held on 1-12-2001. He has also placed on record the certified copy of the identification parade along with legible copy. Both the alleged eye-witnesses went to Jail. As far as the complainant is concerned, he had stated that on 12-9-2004, he was sitting after the `Fajjar prayer' at about 5-30 a.m. in `Masjid Quddas'. The occurrence took place inside the house. There is a road between the place of occurrence and the Mosque. The distance between two of them is 15 feet. There is no courtyard of the Mosque. He had got a weak eyesight from far of a distance but from 80 feet he can identify a person. He had further stated that he had not seen the occurrence but heard the noise. Before he reached the house he heard fire shots and saw an accused coming outside of the house having a pistol in his hand. He was running. The complainant tried to catch hold the accused who was running after the occurrence. The complainant fired two shots one hit at the Motorcycle and the, other to the accused. The complainant was encircled by three accused person to the other side of the park. There were two motorcycles and on each motorcycle three young boys were present and they also ran away. The complainant identified the present petitioner but himself stated that he is not the actual culprit of the murder of his father but he was the person who was standing to the other side of the park. Added that he can identify the murderer if he is produced before him.

2. As far as other witness Abdul Majid son of Ch. Muhammad Khalid is concerned, he could not identify the accused. Learned counsel further submits that there is no other evidence on the record to connect the petitioner with the commission of offence, that even the police after thorough investigation came to the conclusion that the petitioner was not involved in this murder case.

3. On the other hand learned counsel for the complainant submits that petitioner had sent an `E-Mail' to one Hafiz Abdul Rehman Makki who is leader of Ahlhadees Sect, that statement of owner of the Internet Cafe has also been recorded, that section 6(B)(C) then 6-2(C), 6-2(F) is attracted in this case. He further submits that petitioner is connected with the Commission of murder of the deceased. He submits that the offence falls within the prohibitory clause of section 497(1), Cr.P.C.

4. Learned counsel for the State on the other hand submits that there is only that evidence which has been stated by the learned counsel for the complainant and submits that the police has not found him as guilty after going through the case diaries he submits the said finding has been sent to the District Attorney for legal opinion which has not been returned so far by the said office.

5. I have heard the learned counsel for the parties. Petitioner is not named in the F.I.R., no description of the petitioner has also been mentioned in the F.I.R. Identification parade took place on 1-12-2004 while he was arrested on 13-11-2004. One of the witnesses namely Abdul Majid son of Muhammad Khalid totally did not identify the petitioner. As far as complainant the son of the deceased is concerned, he has also stated that the petitioner is not the murderer of his father but he was standing on the other side of the park. Neither any weapon was shown in his hand nor it has been stated anywhere during the identification parade or in the F.I.R. that he has facilitated the murder of the deceased. As far as `E-Mail' is concerned, the occurrence took place on 12-9-2004 the same was two months after the murder of the deceased. As far as opinion of the District Attorney is concerned, he has given the following opinion;-- "It is in the fitness of things that police should investigate the case, collect evidence and prepared challan report under section 173, Cr.P.C. Keeping in view the evidence on the record thereafter this office will examine the case under the law."

6. This opinion is dated 8-1-2005. It means that still the finding of the police about the non-involvement of the petitioner hold the field. Without going into deeper appreciation of the case I am of the opinion that the case of the petitioner is of further inquiry falling under subsection (2) of section 497, Cr.P.C. In this view of the matter, this petition is accepted and the petitioner is allowed bail in the sum of Rs.1,00,000 (one lac) with one surety in the like amount to the satisfaction of D.R. (Judicial) of this Court. If at any stage evidence comes on record connecting the petitioner with the commission of murder of the deceased, the complainant will have a right to move for cancellation of his bail. With these observations this petition stands disposed of. N.H.Q./A-408/L Bail allowed.