2017 P Cr (PLP)

ABDUL SAMI KHAN, J.

Through this petition under section 497, Cr.P.C. Tasawar Mehmood, the petitioner has sought post-arrest bail in cross-version of case FIR No.144/2011 Rapt No. 25 dated 10.10.2011 under sections 302, 34, P.P.C., registered at Police Station Domeli, District Jhelum.

2. The arguments advanced by learned counsel for the parties have been heard and record of this case has also been perused with their able assistance. This is bail after arrest and deeper appreciation is not allowed at this stage. It has been noticed that the petitioner is named in FIR with the name of son-in-law of Muhammad Rafique but his name came on record through supplementary statement dated 09.07.2015 after his arrest. No specific injury is attributed to the petitioner and the allegation against the petitioner is that he along with co-accused inflicted injuries to Muhammad Balouch deceased with spade, Danda and Sota. It is settled law that vicarious liability of the accused or sharing common intention by him with his co-accused for committing murder of the deceased shall be determined by the learned trial Court after recording evidence. In this respect, reliance can be placed on "Mumtaz Hussain and 5 others v. The State" 1996 SCMR 1125. During investigation the petitioner was found innocent by the Investigating officer. Although, opinion of the police is not binding on the Courts of law, yet the same can be taken into consideration, if supported by surroundings facts and circumstances of the case. Keeping the contents of FIR in juxtaposition to the outcome of investigation, prima facie the case of the prosecution against the petitioner has become the case of two versions i.e. one put forward by the complainant and the other came on record during investigation and which version is correct shall be determined by the learned trial court after recording evidence. Reliance can easily be placed upon 2012 SCMR 1137 (Ehsan Ullah v. The State) wherein it has been held by the Hon'ble Supreme Court of Pakistan as under:- "This shows that in the present case the prosecution itself has two versions vis- -vis the petitioner, first of the complainant party according to which the petitioner was present at the spot and had resorted to firing and second of the investigating agency according to which the petitioner was not present at the spot and he was abetting his co-accused from behind the scene. All these considerations surely render the case against the petitioner one of further inquiry into his guilt." Admittedly, the petitioner is previous non-convict. He is behind the bars since 25.03.2015 without any fruitful progress in his trial. Investigation of the case is complete and the petitioner is no more required for further investigation. Nobody could be kept in jail for an indefinite period. His further incarceration in jail would not serve any useful purpose. Mere absconsion is no ground to refuse bail to an accused if otherwise the accused becomes entitled to the grant of bail. Reliance can be placed on case titled as "Mitho Pitafi v. The State" 2009 SCMR

299. Mere heinousness of offence is also no ground to refuse bail to the accused, who other becomes entitled for this concession.

3. For what has been discussed above, the case of the petitioner becomes one of further inquiry covered by subsection (2) of section 497, Cr.P.C. This petition is, therefore, allowed and the petitioner is granted bail after arrest subject to his furnishing bail bonds in the sum of Rs.2,00,000/- (Rupees two hundred thousand only) with two sureties each in the like amount to the satisfaction of the learned trial court.

4. The observations made above are tentative in nature and are strictly confined to the decision of this bail petition only. SL/T-14/L Bail allowed.