2008 PLP 995 (YLR)

MUHAMMAD AFZAL SOOMRO, C.J.

Applicant Mumtaz Ali is involved in F.I.R. No. 517 of 2006 under sec tion 302/34, P.P.C. registered at P.S. Sachal, Karachi. The facts as stated in the F.I.R. are narrated that on 12-11-2006 the complainant was in his house with his family. He is real brother of Ishtiaq Ahmed Siddiqi who was in the Police Department. He was married having four sons. Complainant received a phone that his brother received bullet injury, on this he reached the Hospital; where he saw his brother dead. It was learnt that his brother had gone to his plot in Dhani Bux Village which was rented out, where unknown persons due to unknown reasons murdered him by firing. It is contended by the learned counsel for the applicant that after registration of this case the Investigating Officer did not take efforts to apprehend the real culprits and did not submit interim charge sheet in the competent Court of law; that after the delay of ten months the I.O. woke up and submitted interim charge sheet on 28-8-2007 showing the applicant arrested in this case and in this background it is contended that the applicant has been falsely involved in this blank F.I.R. by the police due to non-fulfilling the illegal demands. It is further, contended that name of the applicant is not mentioned in the F.I.R., no role has been attributed to him; that the case of the prosecution is that the applicant has himself confessed this' crime during interrogation which confession is not admissible in evidence under Articles, 38 and 39 of the Qanoon-e-Shahadat Order, 1984 as the same has allegedly been made after delay of 9 months and except this there is nothing on the record; that no 164, Cr.P.C. statement of the applicant has been recorded before any Magistrate; he was not put to identification parade; that the alleged pistol has been foisted upon the applicant; there is nothing on record to show that two empties were recovered from the spot; that the prosecution evidence contradicts the post-mortem report which suggests further inquiry into, the matter; there is overwriting in the statement under section 161, Cr.P.C. of eye-witness Allah Wasayo on the name of the applicant: The learned counsel in support of his contention relied upon on the case of Mohsin Nizamullah v. The State 1999 PCr.LJ 60 wherein a Division Bench of this Court granted bail to accused, accused involved on the basis of his confession. He has also relied upon the case of Zulfiqar Ali v. The State 1996 MLD 1457 Lahore wherein it has been held that F.I.R. was lodged after an unexplained delay of 12 flours, medical evidence was not in conformity with. Ocular account

Police opinion though not binding on the Court, but being adverse to the prosecution case had created doubt about its veracity which was to be resolved in favour of accused even at bail stage. No reasonable grounds existed to believe that accused had committed a non-bailable offence but sufficient grounds for further inquiry into his guilt did exist bringing his case within the ambit of section 497(2), Cr.P.C. and entitling him for grant of bail. Accused was admitted to bail in murder case. In the case of Mst. Najma Bibi v. The State 1995 MLD 1457 Lahore it has been held that except the extra judicial confession allegedly made by accused about nine months after the occurrence, there was no other material of the alleged conspiracy hatched by her. Case against accused in circumstances appeared to be one of further inquiry. In the case of Mst. Khursheed Bibi v. The State 1997 PCr.LJ 1537 Lahore it has been held that accused was neither named in the F.I.R. nor even suspected to have committed the offence. Only evidence against accused was the extra judicial confession allegedly made by her about 10/10 days after three occurrence before the prosecution witnesses closely related to the deceased which was a weak type of evidence, evidentiary value of which could be appraised at the trial. Learned counsel for the State half-heartedly opposed the grant of bail but has been unable to controvert the above situation. I have heard the learned counsel for the applicant and State and have carefully gone through the material available on record and the case law cited by the learned counsel for the applicant. Admittedly name of the applicant is not mentioned in the F.I.R., the applicant has been arrested after months of the incident which too during interrogation who allegedly confessed the offence which is not admissible in Qanoon-e-Shahadat. The other circumstances of the case also go to favour the applicant and suggest further inquiry into the guilt or innocence of the applicant. In the circumstances, I grant bail to the applicant in the sum of Rs.2 Lacs with A P.R. bond in like amount to the satisfaction of the trial Court. H.B.T./M-7/K Bail granted.