2019 P Cr (PLP)

SAYYED MAZAHAR ALI AKBAR NAQVI, J.

By means of instant single order, this Court is going to dispose of instant petition as well as connected petition bearing Criminal Miscellaneous No. 239394-B of 2018 as both of them are arising out of the one and the same crime report.

2. By means of instant petition, the petitioner Zaheer Ejaz whereas through connected Criminal Miscellaneous No. 239394-B of 2018, the petitioner Muhammad Naveed, have sought for their post-arrest bail in case FIR No. 386/2018, dated 06.07.2018, offence under sections 302, 147, 149, P.P.C. registered with Police Station, Raza Abad, District Faisalabad, at the instance of respondent No.2/complainant.

2. The allegation against the petitioners, concisely, as per contents of crime report is that son of the complainant namely Haris Sohail on 06.07.2018 went to bring back his wife Mst. Aqsa with children and hot words were exchanged whereupon at 3.00 p.m., both the petitioners along with their co-accused in prosecution of their common object/intention attacked upon said Haris Sohail and gave him fist and kick blows who fell down on the ground. He was shifted to Civil Hospital wherefrom he referred to Allied Hospital and succumbed to the injuries.

3. Learned counsel for the petitioners contends that the petitioners are innocent and have been falsely involved in this case by the complainant against the actual facts and circumstances with ulterior motive. Contends that there is delay of more than seven hours in lodging the crime report. Further contends that in crime report no specific role is attributed to the petitioners rather joint/collective role is attributed to the accused persons. Submits that during the course of investigation co-accused of the petitioner namely Irfan has been found innocent by the investigating officer whereas pre-arrest bail of co-accused namely Mst. Fauzia who is the mother of the petitioner Zaheer Ejaz has been confirmed by the learned Addl. Sessions Judge. Further submits that in text of crime report, there was no mentioning of tying Haris deceased with some electric pole nor the site plan reflects this aspect and subsequently on 13.7.2018 a supplementary statement was got recorded by the complainant to this aspect. Adds that recovery of rope/rassi has been planted by the investigating officer against the petitioner Zaheer only in order to strengthen the prosecution case. Further adds that complainant through supplementary statement improved the case without showing source of knowledge which fact shows that complainant and PWs were not present at the place of occurrence at the time of occurrence. In such circumstances, it is argued that that the case against the petitioners is one of further inquiry falling within the ambit of section 497(2), Cr.P.C. It is contended that the petitioners are behind the bars since the date of their arrest and investigation being complete their persons are no more required by the police for further investigation and as such no useful purpose would be served by their further detention in jail.

4. On the other hand, learned Law Officer assisted by learned counsel for the complainant has opposed these petitions with vehemence. It is argued that petitioners are well nominated in the FIR with specific allegation. Contends that recovery of rope/rassi with which the petitioners allegedly tied the deceased with electric pole has been made from petitioner Zaheer. It is argued that the petitioners were found guilty during the course of investigation and their names were placed in column No.3 of the report under section 173, Cr.P.C. It is contended that the offence alleged against the petitioners entails capital punishment which falls within the ambit of section 497(1), Cr.P.C. In such circumstances, it is contended that the petitioners are not entitled to the relief prayed for by means of instant petition.

5. Arguments pro and contra have been heard and gone through the available record.

6. There is no denial to this fact that the petitioners are named in the crime report, however, this Court has to see from the facts and circumstances whether case against the petitioner to the extent of grant of bail is made out or not. Bare perusal of crime report reflects that no specific role is attributed to the petitioners rather joint/collective role is attributed to the accused persons. Further, during the course of investigation co-accused of the petitioner namely Irfan has been found innocent by the investigating officer whereas pre-arrest bail of co-accused namely Mst. Fauzia who is the mother of the petitioner Zaheer Ejaz has been confirmed by the learned Additional Sessions Judge. Furthermore, in text of crime report, there was no mentioning of tying Haris deceased with some electric pole nor the site plan reflects this aspect and subsequently on 13.7.2018 a supplementary statement was got recorded by the complainant to this aspect which too was recorded after seven days of the occurrence. Moreover, co-accused Rizwan and Rashid were also found during the course of investigation involved only to the extent of their presence over there and importantly both the said co-accused Rizwan and Rashid took the deceased Haris, the then injured to the hospital where he succumbed to the injuries. Moreso, complainant through supplementary statement made on 13.7.2018 improved the case without showing source of knowledge which fact prima facie shows that complainant was not present at the place of occurrence at the time of occurrence. Such circumstances make the case against the petitioners one of further inquiry falling within the ambit of section 497(2), Cr.P.C. The petitioners are behind the bars since the date of their arrest. Investigation being complete, their bodies are no more required by the police and as such no useful purpose would be served by their further incarceration in jail. Liberty of a person is a precious right which cannot be curtailed for an indefinite period. Moreso, culpability of the petitioners would be determined by the learned trial court after recording of prosecution evidence.

7. So far as contention of the learned counsel for the complainant that offence against the petitioners entails capital punishment, therefore, they are not entitled to grant of relief prayed for is concerned, suffice it to say that in the case of Muhammad Ismail v. Muhammad Rafique and another (PLD 1989 SC 585), the august Supreme Court of Pakistan has held that when otherwise case against the accused is covered under subsection (2) of section 497, Cr.P.C. they are entitled to the concession of bail as a matter of right.

8. In sequel to above I am inclined that sufficient grounds exist to enlarge the petitioners on post arrest bail. Resultantly, the instant petitions are accepted and petitioners are admitted to bail subject to their, furnishing bail bond in the sum of Rs. 100,000/- each with one surety each in the like amount to the satisfaction of learned trial Court. MQ/Z-22/L Bail granted.