2013 PLP 681 (YLR)

MANZOOR AHMAD MALIK, J.

Fahad alias Fahdu, petitioner seeks bail after arrest in case F.I.R. No. 81 of 2012, dated 26-2-2012, offence under sections 302, 147 and 149, P.P.C., registered at Police Station Tatlay Aali, District Gujranwala.

2. Precisely, the prosecution story, as set out in the F.I.R., is that on 25-2-2012 petitioner along with his co-accused took Amir alias Mandhi son of the complainant in a rickshaw at Bopra Kalan in the haveli of Muhammad Fayyaz where he was hanged by the accused with danda fixed between the cots and his hands, feet were tied up with strings. The accused beat him with fist blows. The complainant along with other witnesses saw this occurrence through the hole of the door. The specific allegation against the petitioner is that he along with other accused caught hold of son of the complainant by his arms and legs whereas accused Hadayat Ullah gave fist blows on his jaws and neck.

3. Learned counsel for the petitioner, in support of this petition, contends that the story of the prosecution as stated in the F.I.R. is highly improbable as there was no occasion for the complainant to see the alleged occurrence from the hole of the door; that the presence of the complainant and other witnesses at the time of occurrence is belied from the fact that there is a delay of about nine hours in reporting the matter to the police without there being any explanation; that there is no specific allegation against the petitioner and as per F.I.R. allegation of giving fist blows is only confined to accused Hadayat Ullah alias Shakan; that during the course of investigation nothing was recovered from the petitioner whereas certain recoveries i.e. cots were allegedly recovered from Hadayat Ullah alias Shakan, two strings from Muhammad Shahbaz alias Saima and danda from Muhammad Khalid alias Kaloo co-accused of the petitioner; that petitioner has no concern with the motive of the case; that petitioner is behind the bars since 27-2-2012 and no more required for the purpose of investigation; that in the circumstances, case to the extent of the petitioner calls for further inquiry within the ambit of subsection (2) of section 497, Code of Criminal Procedure.

4. On the other hand, learned Deputy Prosecutor-General, assisted by learned counsel for the complainant, opposes this bail petition on the grounds that the petitioner is nominated in the F.I.R.; that he has been fully implicated by the complainant as well as the other prosecution witnesses; that the offence alleged against the petitioner does fall within the prohibitory clause of section 497, Code of Criminal Procedure; that trial has already commenced and any observation by this Court regarding merits of the case, at this stage, may prejudice the case of either side. However, learned Deputy Prosecutor-General after perusal of record and under instructions from the Police Officer present in the court confirms that during the course of investigation nothing was recovered from the petitioner, however, certain recoveries i.e. cots were recovered at the pointation of Hadayat Ullah alias Shakan, two strings from Muhammad Shahbaz alias Saima and danda from Muhammad Khalid alias Khaloo co-accused of the petitioner.

5. Heard. In the F.I.R. it is the case of the complainant that on 25-2-2012 petitioner along with his co-accused took Amir alias Mandhi son of the complainant in a rickshaw at Bopra Kalan in the haveli of Muhammad Fayyaz where he was hanged with danda fixed between the cots and his hands, feet were tied up with strings. The accused beat him with fist blows. The complainant alongwith others witnessed this occurrence through the hole of the door. The specific allegation against the petitioner is that he alongwith other accused caught hold of son of the complainant by his arms and legs whereas accused Hadayat Ullah gave fist blows on his jaws and neck. As per F.I.R., this occurrence took place at 5-30 p.m. on 25-2-2012 whereas the matter was reported to the police at 2-15 a.m. on 26-2-2012 i.e. after the delay of about nine hours, but it is for the trial Court to determine after recording of evidence, whether this delay has any bearing on the prosecution case or not. However, the contents of the F.I.R. reveal that there is no allegation that the petitioner was armed with any weapon at the time of alleged occurrence. The allegation against the petitioner is that he along with his co-accused namely Muhammad Khalid alias Khaloo, Qasim Shah alias Kashi and Shahbaz alias Saima caught hold of the deceased by his arms and legs whereas accused Hadayat Ullah was giving fist blows on the jaws and neck of Amir alias Mandhi (deceased). Learned Deputy Prosecutor-General after perusal of record and under instructions from the Police Officer present in the court has confirmed that during the investigation nothing was recovered from the petitioner, however, certain recoveries i.e. cots were recovered at the pointation of Hadayat Ullah alias Shakan, two strings from Muhammad Shahbaz alias Saima and danda from Muhammad Khalid alias Khaloo co-accused of the petitioner. The petitioner is behind the bars since 27-2-2012 and no more required for the purpose of investigation. Moreover motive is alleged against accused Hadayat Ullah alias Shakan. In the circumstances case to the extent of petitioner calls for further inquiry within the ambit of subsection (2) of section 497, Code of Criminal Procedure. As far as commencement of trial is concerned, suffice it to observe that in view of the judgments of Hon'ble Supreme Court of Pakistan in the case of "Muhammad Ismail v. Muhammad Rafique and another" (PLD 1989 SC 585) and "Abid Ali alias Ali v. The State" (2011 SCMR 161), mere submission of challan and commencement of the trial is no ground for refusal of bail if otherwise the accused is entitled to the same. This petition is, therefore, allowed and the petitioner is admitted to bail after arrest subject to his furnishing bail bond in the sum of Rs.2,00,000 (rupees two lac only) with one surety in the like amount to the satisfaction of learned trial Court.

6. Before parting with this order, it is clarified that the observations made in this order are purely tentative in nature and relevant only for the disposal of this bail petition which shall not influence the learned trial Court in any manner whatsoever. MWA/F-42/L Bail granted.