2019 PLP 1895 (YLR)

MUHAMMAD WAHEED KHAN, J.

Apprehending his arrest at the hands of the local police, through this petition, the petitioner seeks pre-arrest bail in case FIR No.188/18 dated 30.04.2018 registered under sections 302, 34, P.P.C. at Police Station Sadar, Nankana Sahib.

2. Shahid Nadeem complainant of the instant FIR put the machinery of law into motion with the allegation that the present petitioner on 29.04.2018 at about 03:00 p.m. along with his co-accused in furtherance of their common intention, committed Qatl-i-Amd of Mst. Naseem Boota (deceased).

3. Pro and contra arguments heard. Record perused.

4. Perusal of record reveals that the petitioner is nominated in the FIR with the role that while entering into house of Mst. Naseem Boota deceased, subjected her to torture and inflicted kicks blow on her person and as she was pregnant in consequence of illicit relations with the present petitioner, she was firstly taken to the house of Sohail co-accused, where Mst. Yasmeen co-accused wife of Sohail attended her and later on shifted to Rubina Hospital, Mananwala, where she died. The post-mortem was conducted on 21.04.2018, wherein doctor found all the structures were healthy and no sign of physical violence was identified on the body of the deceased. Vaginal swabs for DNA analysis were taken and opinion for cause of death was deferred till receiving the report of Punjab Forensic Science Agency. The PFSA in its report observed as under:- "No seminal material was found on item # 3 and 4; therefore no further DNA analysis (Short Tandem Repeat profiling) was conducted on these items and no comparison could be made with the DNA profile of Abdul Rehman Ashraf (item # S1)". And through another report it was showed that from the analysis of visceras no drugs/poison was detected in blood and stomach contents. The other aspect of the case is that as far as regarding violence committed by the petitioner on the person of the deceased while entering into her house is concerned, no witness is available with the prosecution in this regard and when this situation was confronted to the learned DPG and the learned counsel appearing on behalf of the complainant, they only stated that there are two witnesses available with the prosecution, namely, Gulzar Ahmad and Abdul Lateef, who had allegedly seen the petitioner and other accused while taking the deceased to hospital, but conceded that the prosecution does not possess any witness regarding the occurrence in the house of the deceased. First investigation of the case was conducted by Riaz Ahmad Inspector, who concluded that the petitioner had not entered into the house of the deceased or subjected her to torture. Thereafter, the investigation was transferred on the application of the complainant, wherein firstly Riaz Ahmad SI investigated the case and on his transfer Muhammad Ashraf SI also opined vide case diary No.30 dated 21.10.2018 that there is no evidence available with the prosecution regarding culpability of the petitioner. The other co-accused Kali Jatt and Sohail have already been admitted to bail by the learned Trial Court. The investigation is already complete and as the petitioner had already joined the investigation, so, sending the petitioner behind the bars, would neither likely to serve any beneficial purpose nor same seemed justified. Even otherwise, keeping in view the above circumstances, prima-facie the involvement of the present petitioner on the basis of motivated prosecution cannot be ruled out. The law is settled by now that benefit of doubt arising out of the prosecution story should be extended to the accused at any stage of the case. Reliance in this regard is placed on the case of Zaigham Ashraf v. The State (2016 SCMR 18). In case of Aamer v. The State (PLD 1972 SC 277), it was held that "for purpose of bail, law not to be stretched in favour of prosecution...... benefit of doubt, if any arising, must go to accused even at bail stage". Similar view was taken in the case of Manzoor v. The State (PLD 1972 SC 81).

5. For what has been discussed above, the petitioner is entitled to pre-arrest bail, hence, this petition is allowed and ad interim pre-arrest bail already granted to the petitioner is confirmed, subject to his furnishing fresh bail bonds in the sum of Rs.2,00,000/- (Rupees two lacs) with one surety in the like amount to the satisfaction of the learned Trial Court. Needless to mention here that the findings and observation given in the instant petition are tentative in nature and it would not have any bearing on the merits of the case during the trial. SA/A-28/L Bail confirmed.