2017 PLP 446 (MLD)

FARRUKH GULZAR AWAN, J.

In terms of Section 498 of The Code of Criminal Procedure, 1898, I propose to decide the above captioned petition filed by Malik Sajid Ismail and Hafiz Muhammad Usman and the other connected Criminal Miscellaneous No.36-B of 2016, filed by Muhammad Kashif Bashir through the instant consolidated order whereby they have sought concession of pre arrest bail in case FIR No.259 dated 07.10.2015, offences under Sections 322/148/149 of The Pakistan Penal Code (Act XLV of 1860) (hereinafter called P.P.C.), (Section 302, P.P.C. since deleted), registered at Police Station Sadder, Bahawalpur.

2. Shehnaz Akhtar, the complainant alleged in her aforesaid crime report that on 6.10.2015 at about 8/9 p.m., the petitioners along with their co-accused forcibly administered poisonous material to her son Muhammad Ihtisham, who was shifted to hospital where he expired.

3. After hearing the parties at full length, I have perused the record and observed that petitioner No.1, Malik Sajid Ismail has been attributed the role of administering poisonous material and petitioner No.2, Hafiz Muhammad Usman along with his other co-accused has been attributed the role of holding Muhammad Ihtisham, the deceased, at the time of alleged occurrence. Petitioner, Muhammad Kashif Bashir being one of the unknown accused, was involved in this case on the supplementary statement of the complainant on 11.10.2015 but without disclosure of source of information. The medical evidence available on record shows that no mark of violence on the person of deceased was observed, no drug/poison was detected by the Chemical Examiner and even cause of death could not be ascertained. Record further shows that the Investigating Officer exonerated the petitioners vis-a-vis offence under section 302, P.P.C. substituting the same by Section 322, P.P.C., which though is non-bailable yet is punishable for Diyat and as such, for this added reason as well, liberty of the petitioners cannot be curtailed mere on the basis of allegations. I am fortified from the observations of August Supreme Court of Pakistan made in case titled "Syed Muhammad Firdus and others v. The State (2005 SCMR 784) at page No.791 as under:-- "Be that as it may, in any case they shall not be punished ultimately for death or life imprisonment as under section 322, P.P.C. the sentence is of Diyat, therefore, for this added reasons as well, concession of bail cannot be denied to them under the law."

4. I have also obtained guidance in this respect from case law reported as "Qammar Naseer alias Baitu Masih and others's case (2006 YLR 1221 (Lahore))" wherein at page No.1223, it has been held as under:-- "According to the post-mortem examination report Maqsood Masih had died on 21.2.2005 at 9:45 a.m. No injury was found on his body. Visera was sent to the office of Chemical Examiner and also to the Bacteriologist to the Government of Punjab for detection of poison/drug or disease. The cause of death was to be given after the receipt of the reports from the said offices. There is absolutely nothing on record to show that the death of Maqsood Masih was homicidal. The liberty of the petitioners cannot be allowed to be curtailed on mere allegations."

5. It has not been disputed that throughout the investigation, the petitioners have been joining the investigation process. In absence of any motive to do away with the deceased and the medical evidence being prima facie contradictory to the oral version of the complainant, malice and mala fide on the part of the complainant cannot safely be ruled out of consideration at this stage. In view of above, the petitions in hand are allowed and the concession of ad interim, pre arrest bail already granted to all the petitioners stands confirmed subject to their furnishing fresh bail bonds in the sum of Rs.200,000/- (two lac) each with one surety each in the like amount to the satisfaction of learned trial Court. It is made clear that the findings hereinabove are tentative in nature and the learned trial Court shall be free to decide the case without being influenced from the said findings in any manner. HBT/S-34/L Bail confirmed.