2014 PLP 1924 (YLR)

MUHAMMAD ANWAR KHAN KASI, C.J.

Petitioner [Muhammad Nawaz] seeks post-arrest bail in case F.I.R. No.297, dated 28-7-2012, under sections 302/34 P.P.C., Police Station Sabzi Mandl, Islamabad, after its rejection from the Court of learned ASJ-VI (East) Islamabad, vide order dated 26-11-2013.

2. Learned counsel argued that petitioner is entitled to bail on the principle of consistency as co-accused Jaffar Khan having identical role has been granted bail by the Hon'ble Supreme Court of Pakistan vide order dated 5-7-2013.

3. It is next argued that the petitioner was implicated in the light of statement of one Muhammad Yousaf recorded under section 164 Cr.P.C. and the allegations levelled to his extent are incorrect, false and fictitious, because the said statement is afterthought, exculpatory, delayed, hence no credence could be attached to it and even otherwise said statement is not sufficient to entangle him with the alleged offence, as it is tainted with approbation and reprobation.

4. It is further contended that during investigation, contention of the so-called complainant party is proved to be falsified to the extent of present petitioner, thus the case of the petitioner becomes one of further inquiry as envisaged by subsection (2) of section 497 Cr.P.C.

5. It is also contended that no evidence is available on record to connect him with the commission of alleged crime and the case against the petitioner is based on circumstantial evidence and law of toe to neck is applied. In support of his arguments, learned counsel relied upon case-laws titled as Syed Amanullah Shah v. The State and another (PLD 1996 Supreme Court 241), Khalid Masood v. The State (2002 MLD 1012, Karachi), Waqas v. The State [2013 PCr.LJ 765), Muhammad Mushtaq v. The State (1995 MLD 1755), Rafaqat Ali v. The State (2007 YLR 335), Hafiz Maulvi M. Fazal Haque v. The State (1994 PCr.LJ 2392) and Usman Tariq v. The State and another (2011 PCr.LJ 530).

6. Learned counsel for the complainant, assisted by learned Deputy Attorney-General, opposed the bail petition by stating that grounds urged by the petitioner, require deeper appreciation, which is not permissible at the bail stage at it may prejudice the fate of trial. It is stated that the petitioner jumped out the concession after ad-interim bail and remained fugitive from law, therefore, as an absconder, he is not entitled for discretionary relief, moreover, vicarious liability and conspiracy is established on the basis of available evidence. It is further contended that applicant is involved in 8/9 criminal cases at Jhang Punjab. Reliance was placed on case-laws titled as Muhammad Arif and another v. The State (2002 MLD 1082), Sher Zada and another v. Roshan Zari and another (2010 YLR 1464), Ibrahim v. The State (2012 YLR 983), Riaz Hussain v. The State (2001 SCMR 177), Mehmood Sultan v. The State (1998 PCr.LJ 1769), Abdullah Khan and another v. The State (2001 PCr.LJ 1679), Syed Azahar Abbas v. The State (2013 MLD 869), Salim Sabir v. The State (1987 PCr.LJ 61) and Naseem v. The State and another (2013 MLD 1524).

7. In counter-arguments, learned counsel for petitioner controverted the allegations by stressing that mere abscondence itself is no ground for rejection of bail, while the evidence no where established the facts that the petitioner can be held responsible for vicarious liability or conspiracy. As far his involvement in other criminal cases at Jhang is concerned, it Is absolutely wrong allegation, because there was only one criminal case against him, wherein he has been discharged.

8. Heard and record perused.

9. Brief facts of the case are that on 28-7-2012 at about 7-00 p.m. one Nasir Maqbool A.S.-I. along with his contingent was present in Sector 1-10 for routine patrolling duty, when he received information that over green area near ravine (Barsaati Naala) a dead body of unknown person was lying. Said A.S.-I. rushed towards that place where he found that an unidentified dead body was lying mouth-wards. it was also observed by the A.S.-I. that deceased had been strangulated, hence, F.I.R. against unknown persons was registered. On 2-8-2012, Nasir Abbas, real brother of deceased namely Muhammad Baqir Identified dead body through photographs. Consequently, by the order of learned Executive Magistrate, the corpse was `dis-intered on 3-8-2012. According to record, on 4-8-2012 upon the statement of Nasir Abbas, real brother of deceased namely M. Baqir, statements of legal heirs were recorded by police, whereby none was named, however, on 18-9-2012 i.e. after 1/2 month of the initial statements, a supplementary statement of Nasir Abbas was reduced to writing, whereby the present petitioner, along with three others, nominated as culprits. Muhammad Nawaz (petitioner) was arrested on 28-10-2013 from District Jhang in connection with some other case.

10. The admitted position is that none was nominated by the witness in their statements and after about 56 days of the F.I.R., through supplementary statement, Nazir Abbas had nominated the present petitioner and three others. The statements of legal heirs recorded on 4-8-2012 do not nominate any one for the commission of offence, while through another supplementary statement, of Nasir Abbas, the present petitioner was nominated and, therefore, the case requires further inquiry. Mere absconsion, in the absence of material evidence, cannot be considered as a sole ground for refusal of bail. Record does not reflect his involvement in several criminal cases and, therefore, at this stage it is kept out of consideration.

11. Apart from above, the Hon'ble Supreme Court vide order dated 5-7-2013, admitted co-accused (Jaffar Khan) to bail for the said offence on the ground that the guilt of co-accused requires further inquiry. The role of the present petitioner has not been described differently and, therefore, rule of consistency applies in the case of petitioner. The case-laws relied upon by learned counsel for the complainant are not attracted due to having distinct facts and circumstances.

12. In view of above, petition is allowed and accused/petitioner is admitted to bail subject to his furnishing bail bonds in the sum of Rs.200,000 and PR bond of like amount to the satisfaction of learned Trial Court. HBT/34/Isl Bail granted.