1999 PLP 1033 (MLD)

The ladies viz Mst Basran, Mst. Raji and Mst. Almi were again examined by police under section 161, Cr.P.C. on 29-6-1997 and their 164, Cr.P.C. statements were recorded on 30-6-1997. In their belated and subsequent statements they have again given a different version. They have stated that on the alleged night of incident applicant/accused Aslam armed with a pistol and his brother applicants/accused Ghafoor who was empty handed and seems to have been introduced for the first time entered in their house, Aslam fired from pistol at deceased thereafter they fled away with applicant/accused Aijaz who was standing outside the house. The evidence precisely discussed above reveals that there are two versions of the incident and it is settled principles of law that when there are two versions of an incident equally possible then the version favourable to accused should be tentatively accepted. In case of Muhammad Javed and another v. The State reported in 1995 SCMR 1178 Hon'ble Supreme Court while granting bail to accused has held as under: "We agree with the reasoning by the learned counsel for the petitioner, that the story given in 164, Cr.P.C. statement by the complainant on 19-5-1994 is materially different from the facts given by him in the F.I.R. In his F.I.R. the complainant has tried to implicate three innocent persons for the murder of his brother, but in his statement dated 19-5-1994 he said that in his F.I.R. he has implicated three persons for the murder of his brother, because he had old enmity with them. There is no eye-witness in the case. P.Ws. Dilawar, Abdur Rehman, Nasim and Rab Nawaz had only seen the petitioners washing their clothes to remove blood stains. Said witnesses had been examined very late without an explanation for late examination. " On the point of motive there are also two versions. Motive at initial stage as set up in F.I.R and statements under section 161, Cr.P.C. relates to dispute over Haries, subsequently it has been abandoned and a new. motive about illicit intimacy of applicant/accused Aslam with Mst. Raji and that of Mst. Alman with applicant/accused Aijaz and of Mst. Basran with deceased Nur Muhammad has been set up and animosity between the parties has been shown on that account. It will not be out of place to mention that prosecution is not called upon to set up a motive but if once a motive is set up then duty costs on the prosecution to prove it and if motive fails it recoils on the entire prosecution case. Injuries on the person of P.W. Mst Raji are corroborated by Mushirnarna of injuries and medical certificate. They are suppressed by the complainant and P.Ws. whose names appear in F.I.R. Prima facie, there is conflict between ocular and medical evidence. Merely because offence is heinous or that the names of accused transpire in the F.I.R, is not by itself sufficient for refusal of bail particularly when hostility exists, between the parties as in the case. "The fundamental principle regarding the grant of refusal of bail is to be found in the case of Khalid Saigal v. The State reported in PLD 1962 Supreme Court 495, that ........ 'The mere heinousness of the offence is not by itself a circumstance sufficient to take away the discretion of a Court to grant bail but in addition thereto there must also exist reasonable grounds for believing that the person seeking bail has been guilty of such an offence." In the same case their Lordships were pleased to hold that. "We may state straightaway that where a Court is called upon to exercise its judicial discretion, it will not be discharging its functions properly if it were to proceed upon a priori assumption that in all cases where an offence punishable with death or transportation for life is alleged, bail must as a matter of course be refused. In another case Muhammad Iqbal v. The State reported in PLD 1963 Lahore at page 279 it has been held that; "The provisions relating to bail in respect of persons accused of having committed offences are an attempt to strike a balance between three requirements, all of which are essential. A person who has not been found guilty is presumed to be not guilty and, therefore, must be treated as such. This is the first requirement. The process by which the guilt of a persons is to be found, and in case that guilt is established he is to be brought to punishment, must not be allowed to be defeated. This is the second requirement. Persons who are desperate and feel they have nothing to lose by committing more offences should not be allowed to be in a position to do so. This is the third requirement. From the first it follows that an accused person should not be deprived of his liberty during his trial; from the second, that it must be ensured that he faces his trial and does not defeat the inquiry into the allegations against him, by running away or committing suicide, or by destroying or suppressing the evidence against him, from the third, that he must not be let loose on society if he is so placed as to think that he might just as well hang for a sheep as for a lamb." The learned counsel appearing for the State has not said any thing which may persuade me to refuse bail at this stage keeping in view that principles relating to grant or refusal of bail enunciated in the above authorities. Law is also consistent on the aspect that benefit of doubt can be extended to the accused even at .the stage of bail. In this context I am fortified by the authority of Hon'ble Supreme Court in case of Tariq Bashir and 5 others v. The State reported in PLD 1995 SC

34. There are numerous other discrepancies in prosecution case which I avoid to mention as in my view it may tantamount to appreciation of evidence which is not warranted by law at this stage as only tentative assessment is to be made at the stage of bail from material available with prosecution. In the case in hand no overt act has been ascribed to accused Aijaz and Ghafoor. Name of accused Ghafoor does not transpire in the F.I.R. or in statements under section 161, Cr.P.C. of P.Ws. recorded at earlier stage. One Aziz who was named as accused in the F.I.R. was proved innocent in the investigation and he was let off. Under the circumstances case necessitates further enquiry as contemplated under section 497 (2), Cr.P.C. accordingly applicants/accused are granted bail in the sum of Rs.2,00,000 (Rupees two lacs only) each and P.R. Bond in the like amount to the satisfaction of the trial Court. Before parting with this matter I would like to make it clear that the observations made hereinabove are of tentative nature and they shall not be considered while finally disposing of the case. The trial Court will be at liberty to reach its own independent finding while adjudicating the case without in any manner being influenced by what is observed in this order. H.B.T./A-212/K Bail granted.