2017 PLP 2530 (YLR)

ABDUL SAMI KHAN, J.-- Through this petition under section 497, Cr.P.C. Khalid Khan petitioner has sought bail after arrest in case FIR No. 138/14, dated 26.08.2014 registered at Police Station Harnoli, District Mianwali in respect of an offence under section 302, P.P.C. read with section 34, P.P.C.

2. After hearing the learned counsel for the parties and going through the record with their able assistance it has been noticed by this Court that this is bail after arrest and only tentative assessment is required at this stage. Admittedly the complainant himself is not an eye-witness of the occurrence and he has got registered FIR on the information provided to him by his nephew namely Abdul Qayyum and his son Abdul Khaliq who reached at the spot when the deceased was taking his last breaths. In this case the FIR has been lodged against two unknown persons. The petitioner is not named in the FIR and he has been introduced in this case through a supplementary statement got recorded by the complainant on 29.08.2014, i.e. after three days of the occurrence. It has categorically been mentioned in the supplementary statement that Muhammad Khan and Sher Zaman have told the complainant regarding murder of his son by the petitioner on 27.08.2016 but astonishing the complainant kept mum for two days and involved the petitioner on 29.08.2014 through the above-mentioned supplementary statement. In the supplementary statement the complainant has improved the story narrated in the FIR and also introduced another accused Saleem Ullah to whom he has assigned role of abetment. If this is not enough the complainant also changed motive through the supplementary statement which facts creates serious doubt in the prosecution story set forth in the FIR. It is settled law that supplementary statement has got no value in the eyes of law. Reliance is placed on the case of Abid Ali alias Ali v. The State (2011 SCMR 161). Admittedly the petitioner is nephew of the complainant and the complainant as well as his son namely Abdul Khaliq were previously known to the petitioner but astonishingly they have not named the petitioner in the FIR so in this, eventuality possibility of false implication of the petitioner after thinking over the matter cannot be ruled out of consideration. In the peculiar circumstances of this case a possibility cannot be ruled out of consideration that the complainant has introduced witnesses of Waj Takker and extra-judicial confession in order to strengthen the prosecution case. Even otherwise the worth and evidentiary value of Waj Takker and extra-judicial confession shall be determined by the learned trial court after recording evidence in this case. Reliance is placed on the case of Allah Ditta v. The State and another (2012 SCMR 184). Although during investigation of this case .12 bore gun has been recovered from the petitioner yet the fact remains that no crime-empty has been collected by the Investigating Officer on his first visit to the place of occurrence. In the backdrop of such a situation the recovery allegedly effected from the petitioner cannot provide help to the prosecution. The petitioner is previous non-convict, never involved in any criminal case, he has been arrested in this case on 12.02.2014. and since then he is behind the bars, investigation qua him is complete, therefore, his continuous incarceration for an indefinite period in jail would not serve any beneficial purpose at this stage. Involvement of an accused in heinous offence is no ground to refuse bail after arrest. 1 may observe here that law is quite settled on the point that to prove the case through circumstantial evidence in criminal case, the chain of circumstances should be so strong and solid that one end should start right from the toe of the deceased and the same should encircle a dense grip around the neck of the accused on the other side which is missing in this case. A slight break in the chain of circumstances would definitely make the grip of chain loose and also breaks the geometrical progression of the chain especially when the same has been built up on the basis of feeble or shaky evidence.

3. For what has been discussed above, clouds of doubts are looming large in this case rendering the same to be one of further inquiry into the guilt of the petitioner within the purview of subsection (2) of section 497, Cr.P.C. This petition is, therefore, allowed and the petitioner is admitted to post-arrest bail subject to his furnishing bail bonds in the sum of Rs.200,000/- (Rupees two hundred thousand only) with two sureties each in the like amount to the satisfaction of the learned trial court.

4. Before parting with this order, it is, however, clarified that the observations made herein above are just tentative in nature and the same shall not prejudice the learned trial Court in any manner whatsoever at the time of trial. WA/K-27/L Bail granted.