2007 PLP 2664 (YLR)

HASNAT AHMAD KHAN, J.

Muhammad Rafique petitioner seeks bail after arrest in case F.LR. No.453 dated 6-11-2006 registered at Police Station City. District Layyah, in respect of offence under section 302/34, P.P.C.

2. Shorn of unnecessary details, the prosecution story as narrated in the F.I.R. registered at the instance of Muhammad Hussain complainant is that on 5-11-2006 at about 9-45 p.m. the petitioner came to the drawing room/Baithak of Adil Hussain deceased and took him away on the pretext of getting the matter patched up between Adil Hussain deceased and Musarrat Hussain co-accused. Smelling some foul, play, the complainant along with Ghulam Abbas P.W. followed the deceased. The complainant. further narrated that. at about 10-00 p.m. they reached near the house of Musarrat Hussain co-accused where they witnessed Musarrat Hussain and Zeeshan co-accused, both armed with daggers, causing dagger blows to Adil Hussain deceased. At that time the .petitioner was allegedly holding arm of the deceased. Motive for the occurrence was stated to be antipathy over previous litigation between the parties. Hence the F.I.R. was registered.

3. In support of this petition, learned counsel for the petitioner has contended that. the petitioner has been falsely involved in this case; that the role attributed to the petitioner is only that of catching hold of the arm of the deceased at the relevant time; that during investigation the petitioner was found innocent by the officer of the rank of Inspector whose finding was verified by the D.S.P./S.D.P.O. Saddar Circle Layyah who after thorough investigation also carne to the same conclusion. He adds that the deceased was a desperado. In support of this contention the learned counsel has placed on file a copy of F.I.R. No.187 dated 12-6-2005 registered at Police Station City District Layyah under section 10 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 to show that deceased had raped the mother of a co-accused. Another F.I.R. showing the involvement of the deceased in a case of keeping liquor has also been placed on the record. To strengthen his contentions, the learned counsel for the petitioner has placed reliance on Rehmat Ullah alias Rehman v. The State and another (1970 SCMR 299), Mehmood Akhtar and another v. Haji Nazir Ahmad and- 4 others (1995 SCMR 310), Basharat Hussain v. Ghulam Hussain and others (1978 SCMR 357), Meeran Bux v. The State and another (PLD 1989 SC 347), Amir and others v. The State (1984 SCMR 521) and Muhammad Afzal v. Nazir Ahmad and others (1984 SCMR 429).

4. Conversely, learned counsel for the State assisted by the learned counsel for the complainant has opposed the bail application on the grounds that the petitioner is specifically named in the F.I.R. ; that it was the petitioner who had driven away the deceased on his motor-cycle to the house of the main accused and thereafter he had actively participated in the occurrence by facilitating the murder of the deceased.

5. After hearing the learned counsel for both the parties and going through the record,. I tend to agree with the contentions raised by the learned counsel for the petitioner. During investigation it was brought to the notice of the Investigating Officer that the deceased, who was a desperado, had committed rape with the mother of Zeeshan Haider co-accused. The petitioner is not related to the said co-accused. Prima facie, it does not appeal to reasons. that the deceased would have gone to the house of his enemies in the dark hours of the night to have a compromise A with them in the company of the petitioner without associating his relatives who were admittedly available at the time when the petitioner had allegedly carried the deceased on the motorcycle. During investigation it had come on the record that actually. it was the deceased who being a friend of Muhammad Rafiq petitioner had taken him to the abode of the co-accused. Besides that the question of sharing vicarious liability of the petitioner with the co-accused by holding the arm of the deceased would be requiring further inquiry especially when the two co-accused ,allegedly armed with daggers were causing injuries to the deceased. Moreover, the petitioner was found innocent by two Investigating Officers and a report for discharge of the petitioner was admittedly submitted which, though, was not acceded to. It is true that the opinion of the police is not .binding upon the Courts yet the same has always been taken into consideration by the Courts while deciding the bail applications. The case-law produced by the learned counsel for the petitioner is fully attracted to the facts and circumstances of the case. To put in a nutshell, a case of further inquiry within the meanings of, section 497, Cr.P.C. has been made out in favour of the petitioner, to say the least.

6. Consequently, without prejudicing the trial, .the petition in hand is accepted and the petitioner is allowed bail subject to his furnishing bail bonds in the sum of Rs.2,00,000 with one surety in the like amount to the satisfaction of the learned trial Court. H.B.T./M-414/L????????????????????????????????????????????????????????????????????? ??????????? Bail granted.