2007 PLP 1551 (YLR)

HASNAT AHMAD KHAN, J.--Petitioner seeks bail in case F.I.R. No.32 dated 1-3-2006 registered under section 302/34, P.P.C. at Police Station Delhi Gate, Multan.

2. This case has got very peculiar circumstances inasmuch as the original F.I.R. in which the petitioner is seeking bail was lodged by himself. According to the said,F.I.R., Fida Hussain brother of the petitioner had been done to death by Irfan, Arif and others, after setting him at fire in his own, shop. He did not claim himself to be the eye-witness of the occurrence and on the basis of circumstantial evidence abovementioned persons were named by him as culprits of the murder of his brother. He identified the dead body and investigation of the case started. After two months of said occurrence, story got a twist and one Mehboob Sultan submitted an application before the police on 10-5-2006 in which he alleged that his brother namely Maqsood Sultan had disappeared on 26-2-2003 and Rapat No.22 was lodged on 6-3-2006 with the . Police Station, Delhi Gate regarding his disappearance. He further stated in said application that one Ghulam Abbas had told him that on the night between 26/27 of February, 2006 he had seen Maqsood Sultan deceased in the company of Fida Hussain, Muhammad Saleem-petitioner and Talib Hussain and on the inquiry of said Ghulam Abbas, Fida Hussain co-accused asked to go away. Thereafter said Ghulam Abbas proceeded to Karachi and after returning from Karachi he came to know that Maqsood Sultan was missing. According to the above said applicant, Qaim Din and Ghulam Jillani P.Ws. told Mahboob Sultan that on 9-5-2006 Fida Hussain, Talib Hussain and Muhammad Saleem petitioner had jointly made extra-judicial confession before them whereby they confessed that they had committed the murder of Maqsood Sultan by way of setting him at fire. They further stated that all the accused had sought forgiveness through courtesy of said two witnesses. On the basis, of said application Fida Hussain brother of the petitioner, the petitioner himself and Talib Hussain were involved in this case.

3. After dismissal of the bail application by the learned Additional Sessions Judge, Multan the petitioner has approached this Court for the grant of bail after arrest.

4. The learned counsel for the petitioner has contended that the prosecution version, recorded at the instance of Mehboob Sultan, is totally false and frivolous; that there is no direct evidence against the petitioner which could implicate him for the murder of the deceased; that only evidence available against him is .that of extra-judicial confession and last seen evidence; that such pieces of evidence are always treated as weak evidence; that as a matter of fact Fida Hussain co-accused voluntarily appeared on the scene on 9-5-2006 on which date he submitted an application before Illaqa Magistrate and confessed that he is real culprit of murder of Maqsood Sultan and on said application, notice was issued to the concerned S.H.O. to produce the record on 10-5-2006. Lastly he has contended that during the investigation the petitioner was found innocent and placed in Column No.2.

5. Learned counsel for the State as well as the complainant vehemently opposed this bail application.

6. After hearing arguments of both the parties I have come to the conclusion that this case has got very peculiar circumstances. Initially the legal machinery was put into motion by the petitioner himself by way of lodging F.I.R. No.32 of 2006 in which he has now been arrested. Initially the dead body which was burnt in the shop of Fida Hussain was identified by him as dead body of Fida Hussain who after the occurrence had disappeared from the scene and as mentioned above he voluntarily appeared before the Illaqa Magistrate on 9-5-2006 and through written application confessed the guilt of murder of Maqsood Sultan. On said application (placed on record) S.H.O., Police Station Delhi Gate was asked by Illaqa Magistrate to produce the record on 10-5-2006. Contention of the petitioner that after receipt of said application along with order dated 9-5-2006, the concerned police summoned the present complainant who after receipt of said information submitted application dated 10-5-2006 implicating the petitioner and two others in the commission of murder of his brother, cannot be brushed aside easily and worth of same would be requiring further inquiry. Furthermore, the petitioner and Fida Hussain have been involved on the basis of last seen evidence which was furnished by Ghulam Abbas who claimed that after lastly A seeing the deceased in the company of the petitioner, Fida Hussain and Talib Hussain, he had gone to Karachi and after returning from there he had come to the knowledge of the disappearance of Maqsood Sultan. Said information was allegedly conveyed to Mehboob Sultan on 10-5-2006 i.e. the same date on which the police received above mentioned application dated 9-5-2006 filed by Fida Hussain, the main character of this crime. Thereafter the petitioner and other co-accused were involved in this case on the basis of the application of Mehboob Sultan. Another piece of evidence is in the form of joint extra-judicial confession recorded on 10-5-2006. Question as to why said three witnesses remained silent for two months would also be requiring full attention of the learned trial Court at the time of full dressed trial. Moreover, during the whole investigation nothing incriminating has been recovered from the petitioner. After thorough investigation, the Investigating Officer, Saadat Ali, Inspector S.H.O. Police Station Delhi Gate came to the conclusion that no solid proof could be collected against Muhammad Saleem petitioner and Talib Hussain, co-accused, D.S.P. Haram Gate verified said investigation. On one point of time name of B the petitioner was ordered to be placed in Column No.2 of the challan. The claim of the prosecution that petitioner connived with his brother Fida Hussain in commission of murder to obtain the benefits of insurance policy would be thrashed at the time of the trial. It is established law that c benefit of doubt can be given to accused even at bail stage. As the whole of prosecution case is based upon circumstantial evidence, the same as far as the petitioner is concerned requires further inquiry and as such he is entitled to bail as a matter of right. Reliance in this regard is placed upon the cases reported as Abdus Saleem v. The State (1998 SCMR 1578), Muhammad Ashiq v. Asif Zia alias Bhola (2005 MLD 435), Habib Ullah and others v. The State (2004 PCr.LJ 528), (2002 PCr.LJ 602) and (2000 PCr.LJ 1828). It is also established law that when the case ' of any accused becomes that of further inquiry, start of the trial cannot debar him from getting the post-arrest bail. Reliance in this regard is placed upon PLD 1989 SC 585, PLD 1989 Lah. 233 and 1987 MLD 1608. Consequently, this application is accepted and the petitioner is allowed concession of bail subject to furnishing bail bonds in the sum of Rs.2,00,000 (Rupees two lac) with two sureties in the like amount to the satisfaction of the trial Court. N.H.Q./M-57/L?????????????????????????????????????????????????????????????????????????????????????????????? Bail allowed.