2014 PLP 27 (SCMR)

TASSADUQ HUSSAIN JILLANI, J.

Petitioner along with two others was proceeded against in terms of the case registered (vide F.I.R. No.67 dated 1-2-2013 under sections 302, 452, 109/34, P.P.C. at Police Station Bhikhi, District Sheikhupura) on the statement of Muhammad Azam. The complainant alleged that the petitioner and his co-accused Naeem who are real brothers of complainant's wife used to ask that his daughter namely Maria Azam (deceased) be given in marriage to Khurram Azam (who is their nephew); that they used to put pressure and threaten that if the said request was not acceded to, they will kill Mst. Maria Azam; that on the fateful day and time at about 2-00 p.m. when complainant was sitting along with his wife Mst. Rasoolan Bibi, father Bashir Ahmad and daughter Mst. Maria Bibi, suddenly Nisar Ahmad petitioner armed with pistol and Naeem @ Manna armed with a pistol entered the house and within their view, Naeem alias Manna fired at his daughter Mst. Maria which hit on her right temple. He fired for the second time which hit on the back side of ear and she fell down on the cot. When the complainant and others tried to intervene, petitioner Nisar Ahmad threatened that they too would be killed if they came forward and when they were satisfied that Mst. Maria had died, they fled from the spot.

2. Learned counsel for the petitioner seeks bail on the ground that petitioner is neither connected with the motive part of the prosecution story nor he fired at the deceased; that mere presence at the spot would not make out a case against the petitioner and that in any case, in the afore-referred circumstances, it is a case of further enquiry.

3. Learned counsel for the complainant, on the other hand, opposed the petition by submitting that petitioner is privy to the conspiracy/ abetment and was on the spot at the time of occurrence armed with a pistol; that he facilitated the murder and that the real sister of the petitioner who is real mother of the deceased would not have falsely implicated the petitioner if he was not involved. He lastly submitted that the trial is likely to commence shortly and the above order is likely to affect the merits of the trial. In support of the submissions made, learned counsel relied on a judgment of this Court in Muhammad Ameen v. Master Bashir Ahmed (2006 SCMR 969). Learned Additional Prosecutor General opposed the petition by submitting that petitioner is specifically named in the F.I.R.; that during investigation he was found guilty and that weapon of offence was also recovered from him and that he does not deserve the concession of bail.

4. Having considered the submissions made, we find that prima facie petitioner is not directly connected with the motive part of the prosecution story as according to the prosecution itself, there was a request from the parents of Khurram Azam that Mst. Maria Bibi deceased be married to Khurram Azam. There is no allegation that he fired at the deceased or any prosecution witness at the time of occurrence. Even the motorcycle on which the accused allegedly came at the spot did not belong to the petitioner and on query of the Court, the investigating officer has informed that it was owned by co-accused Saif son of Nazir. As per the argument of complainant's learned counsel that the bail granting order may affect the merits of the trial which is likely to commence is concerned, there is no bar with this Court to grant bail at any stage provided petitioner has made out a case of further enquiry. The rule laid down in Muhammad Ismail v. Muhammad Rafique (PLD 1989 SC 585), is a rule of propriety and practice and cannot be taken as a bar for the grant of bail if an accused has made out a case for the same. In Muhammad Ismail's case supra, this Court alluding to this practice noted that "it is well known practice of the superior Courts of Pakistan that when a murder case is fixed for hearing ordinarily the bail applications are not decided on merits and the matter is often left to the discretion of the trial Judge". But the Court in the operative part of the same judgment attended to the nature and scope of this practice of the Court by holding as follows:-- "The question then arises; whether, subsection (2) of section 497, Cr.P.C. would have operation notwithstanding the afore-stated practice of this Court. Much discussion is not necessary in this behalf. When an accused person becomes entitled as of right to bail under subsection (2) of section 497, Cr.P.C. the same cannot be withheld on the ground of practice; because, the latter is relatable to exercise of discretion while the former is relatable to the exercise and grant of right."

5. In the afore-referred circumstances, the question of petitioner's guilt would require further enquiry. Consequently this petition is converted in to appeal and allowed and subject to petitioner's furnishing bonds in the sum of Rs.100,000 with two sureties in the like amount, to the satisfaction of the learned trial Court, he shall be released on bail. Needless to observe the observations made in this order are tentative in nature and shall not affect the merits of the trial.

6. However, before parting with the order, we would like to observe that if the petitioner in any manner tries to misuse the concession of bail, it would be open for the trial Court to cancel his bail after issuing him the requisite notice. MWA/N-13/SC Bail granted.