2011 PLP 1281 (MLD)

RAUF AHMAD SHAIKH, J.

The petitioner seeks post arrest bail in case F.I.R. No.201 of 2009 dated 17-4-2009 under sections 302/201/365/364, P.P.C. Police Station Baghbanpura, Gujranwala.

2. Briefly stated the prosecution version as set-forth in the F.I.R. recorded on the application of Mst. Shabnam Shafi is that her brother Muhammad Pervaiz was married with Samina Bibi, co-accused of the petitioner on 6-1-1995 and out of wedlock three children were born. Muhammad Pervaiz disappeared in June, 2002, who could not be traced in spite of hectic search. Rana Muhammad Pervaiz and Muhammad Ali P.Ws. informed that in the month of June, 2002, they had seen Muhammad Pervaiz while quarrelling with Samina Bibi and Ishtiaq alias Takoo petitioner and thereafter both of them detained Muhammad Pervaiz in room of the house and on a query by the witnesses, they said that it was a matter between the husband and wife. The complainant and her mother inquired from the accused persons, who told that Muhammad Pervaiz had disappeared from the house after quarrelling with them. After waiting for some days, the mother of the complainant gave an information to the Police and also moved countless applications to the superior Police officers apprehending that he had been murdered. On 25-1-2009 at 4-00 p.m. the petitioner and his co-accused Mst. Samina Bibi made an extra-judicial confession in presence of Rana Pervaiz, Mst.Shabana sister and Irshad Begum mother of the deceased and the complainant to the effect that in June, 2002, they had murdered Muhammad Pervaiz and had thrown his dead body in Chicharwali Canal and sought pardon in the name of Allah Almighty but the complainant and her mother refused to forgive them. She alleged that the accused persons in order to usurp the house, contract marriage with each other and get rid of the children have caused Qatl-e-Amd of Muhammad Pervaiz and disappearance of his dead body by throwing it in the Canal.

3. Learned counsel for the petitioner has contended that the F.I.R. is lodged with the inordinate delay of seven years; that as per IO, he remained in the house till 25-1-2009 the allegation of detaining him in the room is false; that the prosecution version is highly improbable as both P.Ws. Rana Pervaiz and Muhammad Ali are closely related to the deceased and complainant and had they seen the deceased in detention, they would have not kept mum for a period of seven years; that the actual dispute between the parties is regarding house of the deceased, which is obvious from the statement dated 13-8-2010 made by mother of the complainant in the Family Court during suit for dissolution of marriage filed by the co-accused of the petitioner wherein she had stated that if the house and children are given to her, she would have no objection on passing of the decree for dissolution of marriage; that there is no direct, evidence available to the prosecution to corroborate statements of Rana Pervaiz, etc. regarding extra-judicial confession and that Rana Pervaiz is brother-in-law of the complainant whereas the remaining two witnesses are her sister and mother so no independent evidence is available in support of the prosecution version regarding extra-judicial confession.

4. Learned counsel for the complainant and the learned D.P.-G. have contended that, in fact, the petitioner and Mst. Samina Bibi co-accused abducted and murdered the deceased in June, 2002 and the matter was brought to the notice of the concerned Police Officers but no action was taken and as such the delay in lodging the F.I.R. is not fatal to the prosecution case; that the petitioner is specifically nominated in the F.I.R. and that there is no reason for the P.Ws. to make false statements against the petitioner so he is not entitled to the concession of bail.

5. The alleged occurrence took place in June, 2002 and the F.I.R. was lodged on 17-4-2009. There is no tangible proof available to show that in the intervening period any information was furnished to any Police Officer, Rana Pervaiz is sister's husband of the deceased and complainant whereas Muhammad Ali is also related to them so it cannot be believed that they would have kept mum for such a long time had they seen the petitioner and his co-accused while detaining the deceased. The joint confession allegedly made by the petitioner before the complainant, her sister, mother and brother-in-law has no value in the eyes of law. The alleged extra-judicial confession was made in January, 2009 but the F.I.R. was lodged on 17-4-2009. The dead body has not been recovered. In these circumstances, the involvement of the petitioner in commission of the offence as is alleged by the prosecution is highly doubtful and this doubt is to be resolved in his favour even at bail stage. The mere fact that the charge has been framed is no ground to withhold the concession of bail in view above Facts.

6. For the reasons supra, the petition is accepted and the petitioner is admitted to post-arrest bail subject to his furnishing bail bonds in the sum of Rs.5,00,000 (Rupees five lacs only) with one surety in the like amount to the satisfaction of the learned trial Court. M.H./I-20/L Bail allowed.