2009 PLP 795 (YLR)

RAJA SAEED AKRAM KHAN, J.

The petitioner after failing to obtain post-arrest bail from the learned Court below had come to this Court for the same relief in case F.I.R. No.312 dated 15-7-2008 for offence under sections 302, 34, P.P.C. P.S. Sabzi Mandi, Islamabad.

2. The allegation against the petitioner is that he along with his co-accused committed the murder of Nisar-ul-Haq who was the brother of the complainant, Iftikhar and Kamal Khan.

3. Learned counsel for the petitioner has submitted that petitioner has been falsely implicated in this case as such there is no direct evidence against him; that the only role assigned to the petitioner is raising lalkara; that it is also the prosecution's own case that the petitioner did not cause any injury to any of the deceased; that all the injuries upon the three deceased persons were attributed to the main accused namely Latif. He lastly argued that surprising aspect of the case is that in second occurrence petitioner was allegedly armed with a pistol but he did not use the same which makes the case of petitioner as one of further inquiry; that police had already declared the petitioner innocent and his presence at the spot could not be proved; that six months have been lapsed but challan of the case has not been submitted in the Court as yet; that petitioner is behind the bars since his arrest; that investigation of the case has been completed and he is no more required for further investigation and his further incarceration in jail will serve no useful purpose to the prosecution and will amount to punishing him without trial.

4. Learned counsel for the petitioner relied on the following case-laws:-- (i) Muhammad Sadiq and another v. The State (1996 SCMR 1654). (ii) Abdul Rehman v. Javed and 2 others (2002 SCMR 1415).

5. On the other hand learned counsel for the complainant has strongly opposed the bail on the grounds that petitioner raised lalkara which was commanding in nature and on his instigation two different occurrence took place resulting the death of three innocent person; that police officer is biased and he has not investigated the matter fairly; that Ipsi Dixit of police is not binding on the Court; that it is a case of highhandedness and section 34, P.P.C. is very much attracted in this case and can be taken into consideration at the bail stage; that findings of the police are not relevant for the purpose of bail and it should not be even considered at bail stage; that petitioner has actively participated in the occurrence and he was armed with pistol at the time of occurrence, therefore, he js not entitled for bail.

6. Learned counsel for the complainant relied on the following case laws:-- (i) Mst. Qudrat Bibi v. Muhammad Iqbal (2003 SCMR 68) (ii) Muhammad Arshad v. The State (2006 SCMR 966). (iii) Irfan alias Kalu v. The State (2006 PCr.LJ 598 Lahore). (iv) Muhammad Sadiq v. Muhammad Nisar and 7 others (2003 PCr.LJ 20). (v) Todo and another v. The State (2001 PCr.LJ 649 Karachi)

7. Learned Federal counsel has strongly opposed the bail and adopted the arguments advanced by the learned counsel for the complainant. However, he conceded that petitioner was found innocent during the investigation and his presence at the place of occurrence was not proved.

8. I have heard the arguments advanced by both the parties and have perused the record.

9. The role assigned to the petitioner is raising of lalkara. During the investigation petitioner had taken the plea that he was not present at the time of occurrence and in this regard Investigating Officer has recorded the statement of the P.Ws. under section 161, Cr.P.C. and gave his findings after verifying the same' that the presence of the petitioner at the spot has not proved. While appearing before this Court he has categorically stated that petitioner has been declared innocent and he is going to submit challan while placing his name in column No.2 of the challan. Although Ipsi Dixit of police are not binding on the Court, however, it can be considered as one of the relevant factor for granting the bail. Even benefit of doubt can be extended at bail stage. Reliance can be placed on the case Nazir Ahmad v. The State (1993 SCMR 1993), Nasir Ahmad v. The State (2008 PCr.LJ 1323) and Muhammad Afzal v. The State. 2008 PCr.LJ 1352). While dealing the bail applications Court has to see the allegations levelled in the F.I.R. and the statements of the P.Ws. recorded under section 161, Cr.P.C. Deeper appreciation of the evidence at bail stage is not warranted under the law and only a bird's eye view is to be made.

10. It is basic principle of law that bail is not to be refused as punishment merely on the allegation that a person has committed an offence punishable with death or imprisonment for life unless reasonable ground appear to exist to disclose his involvement. However, if Court has the reason to believe that the accused had not committed an offence punishable with death or imprisonment for life or imprisonment for 10 years, bail can be granted. According to the prosecution story there were two independent occurrences took place but surprisingly inspite of the fact that petitioner was allegedly armed with pistol he did not use the same in the occurrence. It is also not denied that no injury has been caused to any of the deceased with the hands of the petitioner which makes the case one of the further inquiry. Reliance can be placed on the case Muhammad Sadiq v. The State (1996 SCMR 1654). Nature of they lalkara whether it was commanding or proverbial shall be seen after recording the evidence which exercise does not fall within the domain of this Court.

11. Every case has got its own circumstances and facts and the bails are granted under those particular circumstances. The case laws cited on behalf of complainant are distinguishable and speak of the different situation.

12. The petitioner is behind the bars since his arrest. Investigation of the case has been completed and petitioner is no more required for further investigation and his further detention in jail will amount to premature punishment.

13. Taking into consideration all these contentions, instant bail petition is allowed and petitioner is admitted to bail subject to furnishing bail bonds in the sum of Rs.100,000 with one local surety in the like amount to the satisfaction of the learned trial Court. N.H.Q./A-18/Isl. Bail allowed.