2017 P Cr (PLP)

ABDUL SAMI KHAN, J.

Through this petition under section 497, Cr.P.C. the petitioner has sought bail after arrest in case FIR No.305/15 dated 05.09.2015 under sections 302, 34, P.P.C., registered at Police Station Chhanga Manga, District Kasur.

2. The arguments advanced by learned counsel for the parties have been heard and record of this case has been perused with their able assistance. This is bail after arrest and deeper appreciation is not allowed at this stage. Although petitioner is named in FIR, yet the fact remains that there is a delay of three days in lodging the FIR, which has not been explained by the complainant, which prima facie shows that the FIR has been got registered after due deliberation and consultation. In FIR, the allegation against the petitioner is that he was sitting on the belly of Ashiq deceased and was throttling his neck, but the medical officer who conducted postmortem examination on the dead body of the deceased, while relying on the report of Punjab Forensic Science Agency, opined that the nature of death in this case was suicide. Resultantly, the investigating officer also opined about the innocence of the accused including the petitioner. Later on the complainant challenged the opinion of the medical officer and that of the investigating officer and although the Medico-legal Surgeon opined that it was a case of murder instead of suicide in which Ashiq deceased lost his life, yet during the investigation conducted by the Superintendent of Police (Investigation) Kasur, it was found that on 02.09.2015 the dead body of Ashiq deceased, having cloth around his neck, was hanging with a tree in the fields. In this regard, one Abdul Sattar, brother of Ashiq deceased, got recorded his statement on the same day that his brother/deceased had committed suicide. It also revealed during the investigation of the Superintendent of Police (Investigation) that on the hue and cry of wife of the deceased, one Barkat Ali came at the spot and cut the cloth and thereafter the proceedings under section 174, Cr.P.C. were conducted by Muhammad Sarwar S.I. In view of the allegations contained in FIR and the facts emerged during the course of investigation conducted by the Superintendent of Police (Investigation), prima facie the case against the petitioner has become a case of two versions; one put forward by the complainant in FIR and the other came on record during investigation and which version is correct shall be determined by the learned trial court after recording evidence. Reliance can easily be placed upon 2012 SCMR 1137 (Ehsan Ullah v. The State) wherein it has been held by the Hon'ble Supreme Court of Pakistan as under: "This shows that in the present case the prosecution itself has two versions vis- -vis the petitioner, first of the complainant party according to which the petitioner was present at the spot and had resorted to firing and second of the investigating agency according to which the petitioner was not present at the spot and he was abetting his co-accused from behind the scene. All these considerations surely render the case against the petitioner one of further inquiry into his guilt." In this regard, guidance can also be sought from a latest pronouncement of Hon'ble Supreme Court of Pakistan in case titled "Zaigham Ashraf v. State and others" (2016 SCMR 18), wherein the apex Court was pleased to observe as under:- "Keeping in view the two conflicting versions; one given by the complainant in the FIR and the other by the Investigating Agency based on documentary evidence with regard to the plea of alibi, the case of the present petitioner has become certainly one of further inquiry, falling within the ambit of subsection (2) of section 497, Cr.P.C., where grant of bail becomes the right of accused and it is not a grace or concession, to be given by the Court. In the absence of any exceptional ground or reason, denial of bail in such a case would amount to exercise a discretion in a manner, not warranted by law and principle of justice." The outcome of investigation finds support from the pictorial diagram of the deceased as the position of ligature mark around the neck of the deceased. Furthermore, Co-accused of the petitioner namely Sheedan Bibi has already been granted bail by this Court vide order dated 16.03.2016, passed in Criminal Miscellaneous No.2099-B of 2016. Admittedly, the petitioner is previous non-convict and never involved in any other case. He is behind the bars since 10.10.2015. Investigation to the extent of the petitioner is complete and he is no more required for further investigation. Mere heinousness of offence is no ground to refuse bail if otherwise the accused becomes entitled to the concession of bail. It goes without saying here that an ultimate conviction and incarceration of a guilty person can be repaired by the wrong caused by a mistaken relief of interim bail granted to him but no satisfactory reprisal can be offered to an innocent person for his unjustified incarceration at any stage of case if he is acquitted in the long run. It is also settled law that benefit of doubt can be given to the accused even at bail stage, therefore, no useful purpose would be served by keeping the petitioner behind the bars at this stage.

3. For what has been discussed above, taking guidance from the case-law reported as 2016 SCMR 1558, the case of the petitioner becomes one of further inquiry covered by sub section (2) of section 497, Cr.P.C. This petition is, therefore, allowed and the petitioner is granted bail after arrest subject to his furnishing bail bond in the sum of Rs.200,000/- (Rupees two hundred thousand only) with two sureties each in the like amount to the satisfaction of the learned Trial Court.

4. The observations made above are tentative in nature and are strictly confined to the decision of this bail petition only. JK/M-183/L Bail allowed.