2008 P Cr (PLP)

ZUBDA-TUL-HUSSAIN, J.

One Abdul Majeed, the complainant of the case F.I.R. No.77, dated 14-2-2007 recorded under sections 302/397/201/411/34, P.P.C. at Police Station Westridge, District Rawalpindi was on his way along with one Muhammad Akbar at about 8-00 a.m. that he saw the dead body in a pond of water along side the road and reported the same to the police.

2. No accused was as such nominated in the F.I.R., but subsequently, during the investigation, the police arrested the petitioner, who allegedly lead the police to the recovery of incriminating evidence consisting of a shoe, the pieces of the mobile phone SIM 'etc. and also pointed out a deserted house, where, the deceased had been murdered.

3. Learned counsel for the petitioner has argued that the petitioner is not nominated in the F.I.R., nor is there any convincing evidence connecting him with the commission of the alleged offence. As to the recoveries, he stated that the same being joint allegedly on the part of both the accused, are of no legal effect. No fire-arm injury was caused to the deceased. He argued that the recovery of the pistol was totally irrelevant. Learned counsel for the petitioner, therefore, requested that the petitioner be released on bail.

4. Learned A.P.-G. has stated that the petitioner has caused a cold blood murder and that too for an illicit motive. He also stated that incriminating evidence has been collected on the pointation of the petitioner, which alone is sufficient to implicate him in the murder of the deceased. The learned A.P.-G. vehemently maintained that the challan of the case has been submitted in the Court and trial has since commenced and that in such circumstances, the practice of the Courts is that ordinarily, the bail applications are not decided on merits. He requested for the dismissal of the bail application.

5. The bare perusal of the F.I.R. shows that the occurrence in question was a blind murder, for which initially, there was neither any allegation against a specific person, nor any evidence to support the nomination of an accused. It is true that during the investigation, the police allegedly collected a shoe from the place of occurrence, as well as, the pieces of mobile phone SIM, but without going into deeper appreciation of the evidence, it is observed from the record that the pointation of place of occurrence, as well as the said collection of incriminating evidence is based on the joint description of the two accused. It is also noteworthy that the alleged recoveries were effected after more than two months of the occurrence and it will be the heavy responsibility of the prosecution to establish or to explain by cogent evidence, as to how one shoe of the deceased remained lying on the place of occurrence and its recovery could be pointed out by the accused at the place of occurrence. The same would be the position about other recoveries effected from the deserted house, where the deceased was allegedly murdered. All these circumstances essentially make out a case of further inquiry to establish the guilt of the petitioner.

6. There is no doubt that the trial of the case has already started and in such a situation, the Courts have ordinarily refrained from deciding the bail applications on merits and the matter is often left to the discretion of the trial Court. The reason for this practice is obvious. Because, in such a situation, there may be the possibility of the case being prejudiced. At the same time, it also cannot be denied that in a case where there are sufficient grounds for further inquiry into the guilt of an accused and he is otherwise entitled as of right to bail, the same cannot be withheld merely on the ground that the trial of the case has since commenced. The learned counsel for the petitioner has in this behalf genuinely relied upon the case of Muhammad Ismail v. Muhammad Rafiq PLD 1989 SC 585.

7. For what has been discussed above I find that there are sufficient grounds for further inquiry to hold the petitioner guilty of the offence alleged against him. He is, therefore, entitled to bail within the meaning of section 497(2) of Cr.P.C. The petitioner shall, thus, be released on bail provided he submits bail bonds in the amount of Rs.1,00,000 with one surety in the like amount to the satisfaction of learned trial Court. N.H.Q. /J-32/L Bail allowed.