2005 PLP 1824 (YLR)

Ch. Salamat Ali Haideri and Mian Asad Saeed for Petitioners. Saeed Ahmad Malik for the State. Pervaiz Inayat Malik for the Complainant. Date of hearing: 17th January, 2005. Through this petition Mrs. Sahbi Begum, Ghulam Mustafa and Ghulam Farid petitioners have sought pre-arrest bail in case F.I.R. No.545 registered at Police Station Factory Area, Lahore on 23-7-2004 for an offence under section 302, P.P.C.

2. Admittedly the present petitioners do not stand nominated in the F.I.R. in any capacity whatsoever. The petitioners' names had surfaced in his case through an application submitted by a brother of the deceased before the Investigating Officer on 23-7-2004 and through an affidavit allegedly sworn by the Abid P.W. and in the said application as well as the affidavit it had been pointed out that the deceased had been seen last in the company of the present petitioners and their co-accused. According to the F.I.R. the alleged murder had remained un-witnessed, the dead body had remained unidentified at the time of the discovery and the culprits committing the alleged offence had remained unknown. The dead body had been discovered on 23-7-2004 at Lahore after six days of the deceased's having been seen last in the company of the petitioners and others in Gujranwala. In these circumstances the question whether such unseen evidence qualifies the test of proximity or not is a question which calls for further probe at this stage. It may also be relevant to mention here that according to the F.I.R. the dead body had a bleeding wound at the back of the deceased's head and the injury statement as well as the inquest report prepared in this case apparently referred to some injuries on the dead body but according to the Post-mortem Examination Report no injury had been found on the dead body at all and the Chemical Examiner's Report further shows that no poison had been detected, in the dead body. The doctor had, thus, opined that the cause of death of the deceased was ascertainable.

3. It is admitted at all hands that a brother of the deceased in this case had been sentenced to death in an earlier murder was between the parties and his sentence of death had been confirmed by this Court and an appeal in that respect is presently pending before the Hon'ble Supreme Court of Pakistan. The person filing the above mentioned application, dated 23-7-2004 before the police nominating the petitioners in this case for the first time happens to be a brother of the above mentioned condemned convict and Abid P.W. who had sworn the above said affidavit regarding the petitioners involvement in this case was an accused person in the earlier murder case between the parties. In that backdrop the assertion of the learned counsel for the petitioners regarding mala fide implication of the petitioners in this case has appeared to me to be an assertion which may not be entirely without any foundation or substance. According to the Investigating Officer present before this Court the petitioners have already joined the investigation.

4. It may not be out of place to mention here that two co-accused of the petitioners namely Jamshed and Ghulam Murtaza have already been admitted to post-arrest bail by this Court vide order, dated 24-12-2004 passed in Criminal Miscellaneous No. 8849-B of 2004 and the case of the petitioners appears to be at par with the case against the said co-accused as far as the merits are concerned. Thus, there is every likelihood that in case of dismissal of this petition for pre-arrest bail the petitioners may be admitted to post-arrest bail within a few days on the ground of consistency. In similar circumstances in the case of Muhammad Ramzan v. Zafar Ullah and another (1986 SCMR 1380) the Hon'ble Supreme Court of Pakistan had refused to cancel pre-arrest bail of an accused person and in the case of Gulfraz Khan and another v. The State 1991 PCr.LJ Note 42 at page 30 the Hon'ble Federal Shariat Court had confirmed the ad interim pre-arrest bail of an accused person.

5. For what has been discussed above this petition is accepted and the ad interim pre-arrest bail already allowed to the petitioners by this Court vide order, dated 10-1-2005 is hereby confirmed subject to furnishing of fresh bail bonds by the petitioners in the sum of Rs.50,000 (Rupees fifty thousand only) each with one surety each in the like amount to the satisfaction of the Area Magistrate of Police Station Factory Area, Lahore within a period of two weeks from today. H.B.T./S-368/L Bail confirmed.