2012 PLP 2772 (YLR)

ABDUL SAMI KHAN, J.

Through this petition, Muhammad Rafique alias Feeka, petitioner seeks post arrest bail in case F.I.R. No.660 of 2001 dated 13-9-2001 registered under sections 302, 364, 354, 171, P.P.C. at Police Station Saddar Sheikhupura.

2. The brief facts of the case are that the petitioner along with his eight other co-accused nominated in the F.I.R. and four unknown persons entered into the house of the complainant by scaling over the outer wall, abducted mother of the complainant on gun-point and subsequently murder her.

2. Learned counsel for the petitioner submits that the petitioner is innocent and has been falsely involved in the case by the complainant due to deep-rooted enmity between the parties. He further submits that there is a delay of three days in registration of the case without any plausible explanation which clearly shows that the instant case has been registered after due deliberation and consultation. He also submits that though the petitioner is named in the F.I.R. but the only role attributed to him is that he remained present at the gate of the house of the complainant when the occurrence took place. He further submits that Muhammad Yasin co-accused of the petitioner, who also remained absconder has been allowed bail by the learned trial Court. He further submits that all the accused of the F.I.R. except the petitioner and Muhammad Yasin, have been acquitted from the case on the basis of compromise. He further submits that the petitioner remained on physical remand for 14 days but nothing was recovered from him. He submits that the petitioner was arrested at the Police Station Chunion in some other case and he remained in jail for more than 4-1/2 months and this fact was known to the complainant and the prosecution but he was not got transferred to Saddar Police Station for investigation of the instant case. The investigation is complete, challan has been submitted in the learned trial Court but the charge has not been framed against the accused/petitioner so far. He submits that the case of the petitioner is one of further inquiry. He relied upon Allah Dad and 2 others v. The State (PLD 1978 Supreme Court 1) and prayed for release of the petitioner on bail.

3. On the other hand learned D.P.-G. assisted by learned counsel for the complainant opposes the grant of bail to the petitioner on the ground that the petitioner is named in the F.I.R. with a specific role attributed to him; he has committed heinous offence and the offence falls within the prohibitory clause of section 497, Cr.P.C. so, he is not entitled to the concession of bail.

4. I have heard the arguments of learned counsel for the parties and gone through the record with the able assistance.

5. This is bail after arrest. According to tentative assessment, it has been observed by this court that though the petitioner is nominated in the F.I.R. but the only role attributed to him is that he remained present at the gate of the house of the complainant when occurrence took place. The petitioner remained on physical remand for 14 days but nothing was recovered from him during investigation. Furthermore, during investigation it transpires that petitioner was not present at the place of occurrence. Admittedly there is deep-rooted enmity between the parties so false implication of the petitioner in the case cannot be ruled out.

6. So far as the abscondence of the petitioner is concerned, no doubt the remained absconder for sufficient time but the question of abscondence could be determined by the learned trial Court after recording of evidence. The accused cannot be refused bail only on the ground of abscondence, if he otherwise makes out a case for grant of bail. Furthermore Muhammad Yasin co-accused of the petitioner who also remained absconder was allowed bail by the learned trial Court. The investigation is complete. The petitioner is behind the bars since his arrest and is no more required for further investigation. The challan has been submitted in the learned trial Court but charge has not been framed against the accused so far. Mere heinousness is no ground to refuse bail to the accused. In view of the above facts and circumstances of the case, the case of the petitioner has become one of further inquiry falling under the purview of subsection (2) of section 497, Cr.P.C.

6. Resultantly, this petition is allowed and the petitioner is directed to be released on bail subject to his furnishing bail bonds in the sum of Rs.100,000 with two sureties each in the like amount to the satisfaction of learned trial Court.

7. The observation made hereinbefore are only tentative in nature and are only meant for the disposal of this petition, thus the same shall not prejudice the learned trial Court at trial stage. MWA/M-272/L Bail granted.