2011 PLP 1924 (YLR)

SHAHID HAMEED DAR, J.

Sabir Hussain petitioner seeks bail after arrest in case F.I.R. No.295 of 2009 dated 27-12-2009 under section 302, 34, P.P.C. read with section 109, P.P.C. registered at Police Station Karianwala, District Gujrat, on the statement of Muhammad Saeed.

2. Precisely, the prosecution case is that Abdul Ghaffar elder brother of the complainant divorced his wife Mst. Ghulam Kubra due to estrangement of matrimonial relationship about two years prior to the instant occurrence and thereafter he married Mst. Asfa Bibi against the wishes of her family members which caused annoyance to her paternal uncle Sabir (petitioner); Abdul Ghaffar and his maternal nephew Mukhtar, therefore migrated to village Bhring and established a clinic there. Sabir (petitioner) used to intimidate Abdul Ghaffar due to the aforesaid fact and also extended him the threats of murder. Abdul Ghaffar and his nephew Mukhtar Ali left village Bhring at 3-30 p.m on 26-12-2009 but did not return alive; the complainant along with his brother Raja Muhammad Sarwar set out in search of his brother and nephew and learnt from some persons that the dead bodies of two youthful persons were lying near a Barsati nullah so they went to that place and found the deadbody of Abdul Ghaffar and Mukhtar Ali lying on the road besides their motorcycle; the complainant speculated that both of them had been murdered by Sabir Hussain (petitioner), Faiz Alam and Mst. Sobia, younger sister of Asia Bibi. The motive behind the occurrence was that Abdul Ghaffar had contracted marriage with Mst. Asfa Bibi against the wishes and consent of his parents-in-law.

3. Learned counsel for the petitioner contends that a bald allegation has been levelled by the complainant against the petitioner without hinting at any connecting evidence; the complainant failed to produce any evidence either direct or indirect during the course of investigation against the petitioner, as such, the real facts of this case continuously remained shrouded in mystery; the Investigating Officer fabricated the statement under section 161 Cr.P.C. of Mst. Asfa to the effect that Sabir Hussain, her husband had abetted some one for commission of murder of both the deceased, so, she appeared before the learned Ex- Officio Justice of Peace by way of an application under sections 22-A/22-B Cr.P.C. seeking relief against the Investigating Officer who had fabricated a bogus statement in her name; the Investigating Officer has failed to collect any direct or circumstantial evidence qua the involvement of the petitioner in the occurrence; the case of the petitioner in the attending circumstances of the case falls within the purview of further inquiry as envisaged under section 497(2), Cr.P.C.

4. Conversely, learned Deputy Prosecutor General submits that the petitioner had sufficient reasons to commit the murder of the deceased as he was annoyed over the marriage of Mst. Asfa Bibi with the deceased Abdul Ghaffar; the wife of Abdul Ghaffar Mst. Asfa had joined the investigation and recorded her statement under section 161 Cr.P.C. wherein she had categorically fixed the liability of murder of her husband on the petitioner; the Investigating Officer after conducting intensive investigation in this case has held the petitioner culpable for the murder of both the deceased and has found him involved in the occurrence; lastly contends that the offence with which the petitioner is charged catches the prohibition of section 497, Cr.P.C. and he is not entitled for the relief prayed for.

5. I have heard learned counsel for the parties and perused the record.

6. Though the details of the occurrence are heart rendering and hair-raising, yet the courts are not swayed away by emotions and sentiments and it is the evidence alone which matters for adjudication of bail application of an accused. I find that the Investigating Officer has failed to collect any direct or indirect evidence against the petitioner during the course of investigation up-till now. Even if the statement of Mst. Asfa, which she denies to have made, is taken into consideration it hardly creates any incriminating evidence against the petitioner as no date, time and place has been mentioned by her as to when, where and how the consultation for hatching up a conspiracy had taken place nor it discloses the names of the person who had been allegedly marshalled by the petitioner to commit the murder of both the deceased. Asfa Bibi appeared before the learned Ex-Officio Justice of Peace by way of an application under sections 22-A/22-B, Cr.P.C. with the contention that her statement had been fabricated by the Investigating Officer under section 161, Cr.P.C. during the course of investigation which should be discarded from the investigation file and that the above said Investigating Officer might be proceeded against according to law. Asifa Bibi who is present in person has submitted her sworn Affidavit to same fact making the deposition that she had neither joined the investigation nor had made any statement before the I.O against the petitioner or anybody-else. So far as the circumstances of this case, at the moment are concerned, the petitioner has made out a case for grant of bail within the meanings of section 497(2), Cr.P.C. as further probe is required to look into his guilt.

7. For the foregoing reasons, I accept this application and admit the petitioner to post arrest bail provided he furnishes bail bonds in the sum of Rs.1,00,000 with two sureties each in the like amount to the satisfaction of learned trial Court. N.H.Q./S-159/L Bail allowed.