2013 P Cr (PLP)

SAYYED MAZAHAR ALI AKBAR NAQVI, J.

Through the instant petition, Mian Khan and Bhai Khan, petitioners have sought for their post arrest bail in case F.I.R. No.50, dated 4-2-2012, offence under sections 302, 148, 149, P.P.C., registered with Police Station, Sadar Pattoki, District Kasur.

2. Prosecution story, in brief, as per contents of the crime report is that on 4-2-2012 at 4-00/5-00 a.m., after raising lalkara by Mian Khan, accused persons all armed with their respective weapons committed murder of Nasir (deceased) after forcibly putting the deceased into the dala, strangulating him and throwing him on the road. It is mentioned in the crime report that Bhai Khan petitioner along with Asim caught hold of the deceased from his legs, whereas Mian Khan gave a blow with his pistol hitting Nasir (deceased) on his head.

3. Learned counsel for the petitioners contends that the petitioners have falsely been roped in the instant case by the complainant against the actual facts and circumstances with ulterior motives. It is argued that even as per contents of the crime report, no overt act has been ascribed to Bhai Khan petitioner, whereas Mian Khan petitioner though has been ascribed specific role of causing butt blow on the head of Nasir (deceased), but the said injury does not find support from post mortem report of the deceased as no such injury is available on the head of the deceased. Adds that as a matter of fact the petitioners were not present at the place of occurrence, rather they were present in Faisalabud at the relevant time. Learned counsel submits that these facts and circumstance make the case against the petitioners to be one of further inquiry falling within the ambit of section 497(2), Cr.P.C. It is contended that the petitioners are behind the bars since the date of their arrest and investigation being complete they are no more required by the police for further investigation and as such their further detention in jail would not serve any useful purpose.

4. Contrarily, learned Deputy Prosecutor-General Officer assisted by learned counsel for the complainant has opposed this petition with vehemence. It is argued that the petitioners are named in the crime report with specific allegation/role. Learned counsel submits that the prosecution witnesses have supported the prosecution version through their statements under section 161, Cr.P.C. and ample material is available on the record against the petitioners to connect them with the commission of the offence alleged against them. It is argued that the petitioners remained proclaimed offender for a considerable period. Moreover, the offence alleged against the petitioners entails capital punishment and as such they are not entitled to the relief prayed for by means of instant petition.

5. Arguments advanced from both sides have been heard. Record available on file perused.

6. There is no denial to this fact that the petitioners are named in the crime report, but I am afraid this Court has to see from the facts and circumstances whether case against the petitioners to the extent of grant of relief prayed for is made out or not. Mian Khan petitioner has been ascribed the role of raising lalkara and catching hold the deceased from his legs along with his co-accused, whereas Bhai Khan petitioner has been ascribed the role of causing butt blow of his pistol hitting on the head of the deceased. When confronted, learned Deputy Prosecutor-General submits that the Investigating Officer has not given any definite opinion qua involvement of the petitioners in the instant case, rather he has placed their name in column No. 2 of the report under section 173, Cr.P.C. Moreover, the injury allegedly caused by Mian Khan petitioner does not find support from postmortem report of the deceased. Such circumstances coupled with contradiction in the ocular as well as medical account make the case against the petitioners one of further inquiry falling within the ambit of section 497(2), Cr.P.C. Reliance in this regard is placed on the case of Saeed Khan v. The State and another (2011 SCMR 1392), wherein it has been held as under:-- "

Contradiction in medical and ocular evidence

Record highlighted glaring contradictions between F.I.R./supplementary statement and medico legal certificate issued in respect of injured victim

According to F.I.R., supplementary statement alleged victim had received three firearm injuries on his right lower leg at the hands of culprits but according to medico legal certificate issued in respect of alleged victim there was only one fire shot received by him on his right lower leg

Such factors were sufficient to put caution regarding veracity of allegations levelled by complainant party against accused".

8. So far as contention of the learned counsel for the complainant that offence against the petitioners entails capital punishment, therefore, they are not entitled to grant of relief prayed for is concerned, suffice it to say that in the case of Muhammad Ismail v. Muhammad Rafique and another (PLD 1989 SC 585), the august Supreme Court of Pakistan has held that when otherwise case against the accused is covered under subsection (2) of section 497, Cr.P.C. he is entitled to the concession of bail as a matter of right. Moreover, bail could be granted if the accused has good case for grant of bail on merits and his absconsion would not come in the way while granting him bail, Reliance is placed upon Mitho Pitafi v. The State (2009 SCMR 299). The petitioners are behind the bars since the date of their arrest and investigation being complete their corpus is no more required by the police for further investigation. 7(sic). In sequel to above I am inclined to hold that sufficient grounds exist to enlarge the petitioners on post-arrest bail. Resultantly, the instant petition is accepted as a consequence whereof the petitioners are admitted to bail after arrest subject to their furnishing bail bonds in the sum of Rs.1,00,000 each with one surety each in the like amount to the satisfaction of the learned trial Court. MWA/M-9/L Bail granted.