2009 PLP 546 (MLD)

MUHAMMAD ALAM KHAN, J.

Muhammad Arif son of Gul Sher and Mst. Tehmina Bibi, daughter of Muhammad Younus Batti, accused/petitioners, involved in case F.I.R. No.124, dated 10-4-2008 under sections 302/201/404/427/376/496-A/34, P.P.C. of Police Station Paharpur, District D.I. Khan, after the rejection of their applications for bail by the learned lower Courts have filed the application, in hand for the same purpose.

2. The prosecution story as narrated by the complainant Hameedullah Khan in his first report lodged on 10-4-2008 at 1815 hours is to the effect that his son named Azizullah Khan was married with his niece Mst. Kaneez Bibi some four years before and out of their wedlock a son and a daughter were born. About half and a year earlier, said Azizullah had solemnized another marriage with Mst. Tehmeena Bibi, resident of Rawalpindi, but had no issue from her. For the last six months, his said son was engaged in the cattle business at Sargodah and Mst. Tehmeena Bibi was living with him there. That last night he (the complainant) was informed through Mobile phone by his son Azizullah that his wife Mst. Tehmeena Bibi was missing from the house for the last two days but Arif, resident of Lakhra had assured him that his wife would come back till evening. On the said date he was again telephonically informed by his son that in case any occurrence occurred with him on the way, its responsibility would be on Muhammad Arif, Property Dealer, Sheikh Yousuf, resident of Lakhra. It is further alleged that recently Azizullah had purchased a white colour motorcar and he was present in his house when he was informed that the dead body of his son Azizullah was lying near Chashma Right Bank Canal within the limits of Taqi Shah Bore. When reached there, Azizullah was lying murdered with fire arms for which he charged Muhammad Arif vide F.I.R. ibid.

3. Learned counsel for the petitioner agued that the alleged occurrence is unseen and there is no reliable evidence to connect the accused/petitioners with the commission of the offence. He urged that the story narrated by the complainant seems to be fabricated and manufactured. He submitted that the complainant has not disclosed the source of information with regard to the alleged killing of his son; that Muhammad Khalid, co-accused of the petitioner has been released on bail and under the principle of consistency, the petitioners deserve equal treatment; that the statement of co-accused recorded under section 161, Cr.P.C. cannot be taken into account in support of the prosecution version and, therefore, the case falls within the ambit of `further inquiry' entitling them to the concession of bail. In support of his submissions, reliance was placed on the cases of Muhammad Jamil v. Shaukat Ali and another, reported as 1996 SCMR 1685 and Mst. Najma Bibi v. The State (200 PCr.LJ 1112).

4. On the other hand, learned counsel for the complainant and the learned DAG for the State resisted the application on the grounds that both the accused/petitioners are reasonably linked with the commission of the offence; that they are duly charged by the co-accused Muhammad Khalid in his statement under section 161, Cr.P.C. which is further supported by circumstantial evidence in the shape of recovery of motorcar of the deceased from the house of Muhammad Arif petitioner, which he used in the commission of the offence and that the offence falls within the prohibitory limb of section 497, Cr.P.C. disentitling both the petitioners to the discretionary relief of bail.

5. I have gone through the record and considered the valuable arguments of the learned counsel for the parties.

6. Perusal of the record reveals that there is no direct ocular evidence so as to reasonably connect the petitioners with the commission of the offence. Accused Muhammad Khalid in his statement recorded under section 161, Cr.P.C. has implicated the petitioner Muhammad Arif in the occurrence and likewise Muhammad Arif petitioner has charged him in his statement under section

161. Accused Muhammad Khalid has since been released on bail and the rule of consistency demands that the petitioner be also treated equally. It is yet to be determined at trial when complete evidence comes on record whether such statements have any evidentiary value? Presently, from the available facts and circumstances of the case and tentative assessment of the materials so far brought on record, prima facie, the case falls within the ambit of further inquiry entitling the accused/petitioners to the concession of bail.

6. Resultantly, while deriving wisdom from the case-law reported as Muhammad Jamil v. Shaukat Ali and another (1996 SCMR 1685), I accept this application and admit the accused/petitioners to bail in the sum of Rs.2,00,000 (Rupees two lacs) with two sureties each in the like amount to the satisfaction of Illaqa/Judicial Magistrate Paharpur, or any Judicial Magistrate at D.I. Khan, who shall see that the sureties are local, reliable and men of means. Above are the reasons for my short order of even date. H.B.T./42/P Bail granted.