2013 P Cr (PLP)

MAZHAR IQBAL SIDHU, J.

By filing instant petition under section 497, Cr.P.C., petitioner Asif Shehzad has sought for post-arrest bail in a case registered against not known persons on the written complaint of Hafiz Abdul Rehman under sections 302/34, P.P.C. vide F.I.R. No.1388 dated 16-10-2010 at Police Station, New Multan, District Multan.

2. In the narrative of the F.I.R. by mentioning certain familial disputes it was disclosed that the deceased had remarried. It has been mentioned that on 15-10-2010, on spreading of rancid from the house of Abdul Qadir, the neighbourer themselves informed the police about the matter, the police after taking into possession the dead body, sent the same to Nishtar Hospital where the complainant and his brother Allah Bakhsh identified the same to be of Abdul Qadir, who was assassinated by some unknown persons after fastening his hands and feet by rope and by pressing his throat. After the registration of the case the investigation commenced. The complainant left for abroad, whereupon the prosecution of the case was started by Allah Bakhsh his real brother, who on 24-3-2011 made an application involving Mst. Parveen Akhtar, widow of deceased. Then on 3-9-2011, he made another application through which he involved Muhammad Asif, the petitioner and Muhammad Javed. He again made a statement on 22-9-2011 by implicating Mst. Nawaz Mai, Gamay Khan, Shaukat and Naeem. Another application was submitted by him on 28-10-2011 mentioning in it about the handy mobile set of the deceased having with him at the time of occurrence. Partway investigation on 15-11-2011 two persons namely Manzoor and Mehr Khan appeared before the Investigating Officer and got their statements recorded relating to extra-judicial confession about the murder of deceased allegedly made by Muhammad Asif petitioner and Muhammad Javed. On 6-2-2011, the petitioner was arrested. Prior to that he was declared proclaimed offender. Report under section 173, Cr.P.C. was prepared and submitted before the learned trial Court and after his arrest he allegedly get recovered a handy mobile set of the deceased and a bike about which it has been made mentioned in the F.I.R.

3. Learned counsel for the petitioner contends that murder of Abdul Qadir deceased went unnoticed; except evidence of joint extra judicial confession, no other evidence as such is available on the record and false recoveries of mobile telephone set as well as motorcycle have been planted upon the petitioner; particeps criminis Muhammad Javed has been granted bail by this Court vide Order dated 16-10-2012 passed in Criminal Miscellaneous No. 3795-B of 2011 and that case of the petitioner stands on identical footings. Lastly submits that on these circumstances, the petitioner deserves concession of bail on the principle of rule of further inquiry as well as of consistency.

4. Learned DPG assisted by the learned counsel for the complainant has deftly repudiated the arguments. It has been argued that the case of co-accused Javed, who has been granted bail stands on distinguished footings from the case of the petitioner as from the petitioner articles belonging to the deceased have been recovered; he was declared proclaimed offender, about the same no reasonable, plausible or justifiable justification has been offered before the Court neither in the arguments in the pleadings; report under section 173, Cr.P.C. in the light of provisions of section 512, Cr.P.C. was submitted against the petitioner and now after the indictment, statements of three P.Ws. have been recorded but they are yet to be cross-examined and on each and every date by any prevarication of the accused party proceedings are being adjourned before the learned trial Court, therefore, in these circumstances, it has been solicited for the dismissal of instant petition.

5. Arguments heard. Record has been gone through. The order passed by this Court while admitting bail to accomplice Muhammad Javed has also been noticed.

6. It has gone indubitable that the petitioner is not nominated in the F.I.R. It is also vivid that in the second statement of Allah Bakhsh, real brother of the deceased, the petitioner was nominated along with Muhammad Javed, who has been granted bail. Except the evidence of extra judicial confession, which is joint in nature, no other evidence of substantive character exists to connect the petitioner with the commission of crime.

7. So far as the recovery of articles allegedly belonging to deceased from the petitioner is concerned, it seems apposite to mention that no mention of mobile telephone set having been held by the deceased at the time of occurrence in the F.I.R. However, about the motorcycle it has been mentioned in the F.I.R.

8. In the above circumstances, without commenting upon the recovery of articles, suffice to it to say that this piece of evidence is relatable to the corroborative piece of evidence. Of course, the law has been settled on this point that evidence of joint extra-judicial confession is neither admissible nor relevant as held in the cases reported in (2012 SCMR 387) and (2012 SCMR 184).

9. So far as commencing of trial is concerned, no doubt practice of this Court remains that after commencement of trial normally bail is not granted but this contentious issue has been settled down by the Hon'ble Supreme Court of Pakistan in the case reported in (PLD 1989 SC 585) and about the same, provisions of section 497, Cr.P.C. are self-explanative as according to proviso 4 of said section bail can be granted at any stage even before the deliverance of final judgment. Life and liberty of a subject/citizen is very precious and guaranteed by Article 4 of the Constitution of Islamic Republic of Pakistan, 1973. Material available on the record and arguments raised ad-berram by the learned counsel for the parties, prima facie, make out a case of further inquiry favouring the petitioner to accept his application. Therefore, instant petition is allowed and the petitioner is granted bail provided his furnishing bail bonds in the sum of Rs.2,00,000 (Rupees two lac only) with one surety in the like amount to the satisfaction of the learned trial Court.

10. It has been considered apposite to mention here markedly that all observations made are tentative and just relevant to decision of bail application. MWA/A-33/L Bail granted.