2016 P Cr (PLP)

SAYYED MAZAHAR ALI AKBAR NAQVI, J.

Apprehending his arrest at the hands of police, by way of instant petition, the petitioner seeks his pre-arrest bail in case FIR No.109, dated 16.02.2015, offence under sections 302, 34, P.P.C., registered with Police Station, Jhang Bazar, Faisalabad.

2. Prosecution story, in brief, as per contents of the crime report is that on 16.02.2015 at 7:00 a.m. two unknown accused persons committed murder of Dilbar Hussain, husband of the complainant, while making indiscriminate firing. Subsequently, the petitioner has been arrayed as an accused in this case by the complainant through his supplementary statement recorded on 24.05.2015.

3. Learned counsel for the petitioner submits that the petitioner has falsely been roped in the instant case by the complainant against the actual facts and circumstances with mala fides. It is argued that the petitioner is not named in the crime report; rather he has been roped in this case by the complainant through her supplementary statement recorded on 24.05.2015 i.e. after the elapse of more than three months. Adds that in fact the supplementary statement was made on the basis of information allegedly given to the complainant by Rizwan and Ijaz, PWs, wherein they overheard the conversation of Robina Bibi and Bilal Ahmad (present petitioner) in which he has admitted that he has committed the murder of the deceased. It is added that the supplementary statement does not disclose the time and date when the PWs overheard the said conversation of the petitioner. It is added that the place (house) where this statement was made by the petitioner belongs to maternal grand-parents of the petitioner. Learned counsel contends that the motive alleged by the complainant in this case is that Robina Bibi, mother of the present petitioner was having illicit relations with the deceased and she managed to get the murder of her husband through her own son who is resident of the same area whereas it has been stated in the crime report that the occurrence has taken place early in the morning at 7:00 a.m. and the prosecution witnesses have claimed to have seen the assailants in the broad daylight, however the prosecution witnesses as well as the complainant kept mum for more than three months. Adds that in fact the petitioner along with his mother was taken into custody by the local police illegally and in this regard habeas petition in terms of section 491, Cr.P.C. was filed and they were released by the orders of the learned Sessions Judge, Faisalabd, dated 05.06.2015. Learned counsel adds that the supplementary statement has been recorded ante-dated in this case just to frustrate the proceedings despite of the order of the learned Sessions Judge qua the highhandedness at the part of the Investigating Officer. In such circumstances, it is argued that the petitioner has made out a good case for grant of relief prayed for.

4. Contrarily, learned Deputy Prosecutor General assisted by learned counsel for the complainant has vehemently opposed this petition. It is argued that though the petitioner is not named in the crime report, but he has been implicated in this case by the complainant through her supplementary statement recorded on 24.05.2015 on the basis of the information given to her by the PWs who overheard the conversation of the petitioner and as such he is involved in this case, but when confronted, he admits that earlier the petitioner along with her mother was taken into custody by the police for a considerable period and subsequently in pursuance of the orders of the learned Sessions Judge, Faisalabad, passed on the petition under section 491, Cr.P.C. they were released by the police.

5. Arguments advanced from all corners have been heard. I have also gone through the record available on file.

6. There is no second cavil to this preposition that the petitioner is not named in the crime report, who is a young lad of about 17/18 years. The petitioner has been implicated in this case by the complainant through her supplementary statement recorded on 24.05.2015 i.e. after the elapse of more than three months without rendering any plausible explanation in this regard. The only material against the petitioner collected is that he was overheard by the prosecution witnesses in the odd hours of night wherein he admitted the commission of the murder of the deceased. No time and date of such conversation is disclosed by the PWs. Undeniably the petitioner along with her mother Robina Kausar were taken into custody by the police for a considerable period and subsequently they were released with the intervention of court and as such application moved under section 491, Cr.P.C. was allowed by the learned Sessions Judge, Faisalabad, while discussing the conduct of the Investigating Officer with the following observations:- "

4. This is also alarming that in the courts, the police officials and officers do not hesitate to state the things against the record. It is desired that City Police Officer should take notice of that. He is also desired to take this matter on administrative side. Even if the alleged detenues are nominated by the complainant side, there is a mechanism to join them in the investigation and without adopting that mechanism no one should be summoned or taken into custody by the police".

7. Moreover, the horizon of pre-arrest bail has already been widened by the august Supreme Court of Pakistan while rendering salutary judgment in a reported case Meeran Bux v. The State and another (PLD 1989 SC 347) and as such merits of the case can also be touched upon while dealing with pre-arrest bail. It is a settled principle of law that the Court can even look into and evaluate the mala fides from the facts and circumstances of the case, Which apparently is oozing in this case from the facts and circumstances discussed above. Respectful reliance in this regard is placed on the ratio decidendi of august Supreme Court of Pakistan in the cases of Ajmal Khan v. Liaqat Hayat and another (PLD 1998 SC 97) and Syed Muhammad Firdaus and others v. The State (2005 SCMR 784).

8. In the instant case, there is nothing on the record except the alleged conversation which was overheard by the prosecution wanesses. The story advanced by the complainant through her supplementary statement otherwise does not appeal to reason, in which neither any time nor date has been mentioned qua the conversation in question. Allegation that the mother of the petitioner was having illicit relations with the deceased was levelled at a belated stage. Even otherwise, if as per version of the complainant, the mother of the petitioner was having illicit relations with her deceased husband, it is not possible that the complainant as well as the prosecution witnesses do not know the petitioner, who is resident of the same vicinity and as such the story contained in the crime report that two unknown accused persons committed murder of the deceased in broad daylight and this occurrence was witnessed by Rizwan and Ijaz, PWs also becomes doubtful. Possibility that the instant case has been lodged by the complainant due to grudge being in the mind of the complainant cannot be ruled out. Liberty of a person is a precious right guaranteed by the Constitution of Islamic Republic of Pakistan, 1973, which cannot be abridged on the basis of bald allegations.

9. For the foregoing facts and circumstances, this Court is persuaded to accept this petition. Resultantly by allowing this petition, ad-interim bail already granted to the petitioner in terms of order dated 03.09.2015 is hereby confirmed subject to his furnishing fresh bail bonds, in the sum of Rs.1,00,000/- with one surety in the like amount to the satisfaction of learned trial court. HBT/B-31/L Bail confirmed.