2011 PLP 1565 (YLR)

MANZOOR AHMAD MALIK, J.

Muhammad Saeed, petitioner seeks bail after arrest in case F.I.R. No.319 dated 19-5-2007 registered under sections 302/ 449/34, P.P.C. at Police Station Batala Colony, District Faisalabad. The allegation against the petitioner is that he along with his co-accused while armed with firearms committed murder of Mst.Saima Bibi sister of the complainant,

2. Learned counsel for the petitioner, in support of this petition contends that as per F.I.R. the petitioner and his co-accused Irfan Ashraf fired at Mst. Saima Bibi with their respective weapons as a result whereof, she died that said co-accused of the petitioner was arrested and tried by the learned Addl. Sessions Judge, Faisalabad who vide his judgment dated 28-9-2009 acquitted him that said order of acquittal has not been challenged; that the petitioner, during the course of investigation, has been declared innocent by the police; that mere abscondence of the accused is no ground for the refusal of the bail if otherwise, he is entitled to the same; that there is no progress in the trial as is clear from the report of the learned trial court. Learned counsel for the petitioner also referred to the statement of Shahbaz Khan complainant which was recorded as P.W.7. in the trial of Irfan Ashraf co-accused of the petitioner wherein, he stated that his signatures were procured on the blank papers and he has not seen the occurrence.

3. Learned Deputy District Public Prosecutor opposes this bail petition on the grounds that the petitioner is nominated in the F.I.R. with specific role of causing firearm injury to Mst. Saima Bibi deceased; that the petitioner remained absconder for about two and half years, however under instructions from the police officer present in Court and after consultation of record states that the petitioner was arrested on 11-11-2009 and during the course of investigation the police has concluded that the petitioner is innocent. Further confirms that co-accused of the petitioner with the similar allegation has been acquitted by the learned trial court.

4. Notice was issued to the complainant on 24-1-2011 but none appeared on his behalf. On 4-2-2011 one Imtiaz, husband of the deceased appeared and requested for an adjournment to engage services of a learned counsel, however, thereafter nobody appeared on behalf of the complainant or on behalf of deceased Mst. Saima Bibi and the police officer present in Court states that the complainant is not traceable.

5. I have heard the arguments of both the sides.

6. Though the petitioner is nominated in the F.I.R. but during the course of investigation, he has been found innocent. His co-accused was tried by the learned Additional Sessions Judge, Faisalabad who vide judgment dated 28-9-2009 has acquitted him. In the said judgment, the learned Addl. Sessions Judge has mentioned that complainant of the case namely, Shahbaz Khan appeared as P.W.7 and stated that his signatures were obtained on the blank papers and he has not seen the occurrence. The bail cannot be withheld merely on the ground that the accused remained as absconder if otherwise, he is entitled to the same. Even the report was called from the learned trial court which indicates that the trial has so far not been concluded. In these circumstances the case against the petitioner calls for further inquiry within the ambit of section 497(2), Cr.P.C. This petition is therefore, allowed and the petitioner is admitted to bail subject to his furnishing bail bond in the sum of Rs.5,00,000 (Rupees five lac) with one surety in the like amount to the satisfaction of the learned trial Court.

7. However, it is made clear that the above findings/observations are tentative in nature and relevant only for the disposal of this bail petition and shall not influence the learned trial Court, in any manner, during the trial. H.B.T./M-160/L Bail granted.