2006 P Cr (PLP)

IJAZ AHMAD CHAUDHRY, J.

Through this application under section 497, Cr.P.C. the petitioner seeks post-arrest bail in a case F.I.R. No.326 of 2005, dated 13-10-2005, registered under sections 302, 324, 109, 148/149, P.P.C. at Police Station Civil Lines, Sialkot on the statement of Falak Sher, the complainant.

2. The brief facts as alleged in the F.I.R. are that on 13-10-2005 at about 4-00 p.m.' the complainant with his brother Haji Muhammad Arshad and others .was present at the shop of Haji Muhammad Jamil situated at Kotli Behram, Sialkot, when Qaiser Mehmood, Haroon, Shahzad, Nisar Ahmad co-accused armed with fire-arms along with three unknown persons came and started firing, as a result of which Haji Muhammad Arshad and Haji Ehsan had sustained injuries. Subsequently, Haji Muhammad Arshad died. The motive behind the occurrence was alleged to be previous enmity of murder of Mst. Shagufta Bibi, mother of Haroon Shahzad co-accused.

3. The learned counsel for the petitioner contends that the petitioner is not named in the F.I.R. with specific role and version of the complainant in the F.I.R. has been found false by the police during the course of investigation and three accused persons i.e. Qaiser Mehmood, Haroon Shahzad and Nisar Ahmad are nominated in the F.I.R., who also have been declared guilty, whereas in the supplementary statement alleged recorded on the same day at about 7-00 p.m. the complainant had introduced, the petitioner as accused along with co-accused namely Azam Jamil, Waris and Mst. Maqsoodan Bibi as well as two unknown persons, who had hatched conspiracy in the "Baithak" of Qaiser Mehmood (co-accused) and the deceased had been murdered in connivance with the said accused. According to the learned counsel for the petitioner that Asif and Ameen P.Ws". who had witnessed conspiracy on the same day at about 7-00 p.m. in the Baithak of Qaiser Mehmood for the murder of the deceased and claimed that weapon was supplied to the co-accused by Azim in the, said incident; that the petitioner only has been made an accused for abetment, but he was not present at the spot and had not caused any injury either to the deceased or P.Ws.; that the statements of witnesses for hatching the conspiracy were admittedly recorded after lodging the F.I.R. with the delay of two hours for false implication of the petitioner and other co-accused; that nothing has been recovered from the petitioner and bail cannot be withheld as a punishment as the case against the petitioner comes within the ambit of further inquiry.

4. The learned counsel for the complainant has opposed this bail petition on the ground that there is sufficient evidence collected by the prosecution during the investigation to prima facie, connect the petitioner with the commission of crime; that conspiracy had been hatched by the petitioner with the co-accused for the murder of Arshad deceased, who had contested the elections held in 2005; that the petitioner is involved in a case falling within the prohibitory clause of section 497, Cr.P.C.; that sufficient evidence has been brought on record that the petitioner and his co-accused had provided motorcycle and fire-arms to the real culprits and Mst. Maqsoodan had made statement regarding the hatching of conspiracy by the petitioner with the co-accused for the murder of the deceased.

5. The learned counsel for the State has also opposed this bail petition and adopted the arguments of learned counsel for the complainant.

6. I have heard the arguments advanced by learned counsel for the parties and perused the record with due care and caution.

7. The petitioner is not named in the F.I.R. According to the learned counsel for the petitioner, though Muhammad Amin and Asif are alleged to have witnessed the conspiracy hatched on the same day at 7-00 p.m. for the murder of Arshad deceased and the weapon was supplied to the co-accused by Azim for use in the said incident, yet it is strange that they did not disclose this fact to the deceased or the complainant and the said story appears to be doubtful. The contention raised by the learned counsel for the petitioner is prima facie borne out from the record that such an information of conspiracy was not supplied by the two aforesaid witnesses before the incident or before registration of F.I.R. to the complainant or deceased for nominating the accused in the F.I.R. and name of these witnesses, time, place and manner in which conspiracy was hatched and also name of the petitioner-accused have not been mentioned in the F.I.R. The oral statement of these witnesses, who are admittedly inimical towards the accused as mother of Haroon was murdered about two years ago in which the deceased and complainant were accused cannot be taken as gospel truth. Except oral statements of these witnesses, nothing has been brought on record to support the allegation of conspiracy during the investigation. The D.S.P. Investigation in case diary dated 19-12-2005 has disbelieved the version of witnesses regarding hatching the conspiracy in the Baithak of Qaiser. For the time being, I find that there is no sufficient evidence on record to prima facie connect the petitioner with the commission of crime and as such the petitioner has succeeded in making out a case of further inquiry. The bail cannot be withheld as a punishment and the petitioner cannot be kept in jail for indefinite period, who is behind the bars for the last about 4-1/2 months.

8. For the foregoing reasons, the instant bail petition is accepted and the petitioner is admitted to bail subject to furnishing bail bonds in the sum of Rs.1,00,000 with two sureties each in the like amount to the satisfaction of learned Judicial/Illaqa Magistrate. Before parting from this order, it is clarified that tentative assessment has been made by this Court after perusal of evidence available on record, which will not prejudice the case either of the party at the trial. H.B.T./M-368/L Bail granted.