2010 PLP 3068 (YLR)

HASSAN RAZA PASHA, J.--Through this petition the petitioner seeks post-arrest bail in case F.I.R. No.80 dated 6-8-2009 registered under section 302/34, P.P.C. with Police Station Nelore District Islamabad.

2. Facts of the case have been mentioned elaborately in the order dated 19-6-2010 of learned Additional Sessions Judge, Islamabad and in the memo. of petition and need not be reiterated. Suffice it to say that on refusal of grant of bail to the petitioner by the learned Additional Sessions Judge, Islamabad, he preferred the instant bail petition.

3. Learned counsel for the petitioner contends that the petitioner is not nominated in the F.I.R.; no specific role has been attributed to the petitioner; that the empty was recovered from the place of occurrence on 6-8-2009 which was sent to the FSL on 17-8-2009 whereas the petitioner was arrested on 11-8-2009 which makes the case of the prosecution doubtful and one of further inquiry; that the co-accused of the petitioner has been granted bail by this Court, so following the rule of consistency the petitioner is also entitled for the same relief; that the alleged recovered cell sim is not in the name of petitioner; that there is no substantial piece of evidence for the time being in possession of the prosecution to connect the petitioner with the commission of crime. Reliance is placed on Muhammad Shahid v. The State (2009 YLR 2281), Muhammad Ali v. The State (2008 PCr.LJ 87), Muhammad Ilyas v. The State (2009 YLR 2311), and Muhammad Mansha v. The State (2006 PCr.LJ 47).

4. On the other hand, learned counsel for the complainant contends that the motorcycle used in the occurrence has been recovered from the possession of the co-accused and the weapon of offence also from the possession of petitioner; that the last call received by the deceased was made from the cell of the petitioner and that sim has also been recovered from the petitioner; that the challan has been submitted and evidence of two prosecution witnesses has also been recorded. The case of the petitioner is distinguishable with the case of co-accused. In support of his contention he has relied upon Muhammad Jahangir Badar v. The State and others (PLD 2003 SC 525), The State through Force Commandar, Anti Narcotics Force, Rawalpindi v. Khalid Sharif (2006 SCMR 1265) and Rana Muhammad Safdar, v. Gulzar Ali alias Papoo (2) The State 1999 PCr.LJ 1.

5. Arguments heard, Record perused.

6. It has been noticed that there is no direct evidence of murder of Ilyas against the petitioner. The only evidence available on record against the petitioner is of last call from the cell of petitioner and recovery of empty from the place of occurrence which matched with the pistol recovered from the petitioner. Admittedly, the cell number of last call received by the deceased was reported by the complainant in his supplementary statement. Furthermore the sim is not in the name of the petitioner. So far as the recovery of empty is concerned, the same was recovered from the place of incident on 6-8-2009, the petitioner was arrested on 11-8-2009 whereas the empty was sent to the FSL on 17-8-2009 after 7 days of the arrest of petitioner so, the same has no evidentiary value and could hardly connect the petitioner with the commission of offence. The petitioner and his co-accused were nominated by the witnesses through a supplementary statement. As per their statements said witnesses also reached at the place of occurrence when the deceased was lying in injured condition. In spite of this fact astonishingly they had not informed the complainant regarding the important information of identification of petitioner and co-accused. Another important aspect is that the deceased received only one firearm injury at his leg which is non vital part of the body and witnesses including Muhammad Yaqoob who is real uncle of the deceased attracted at the spot and it was possible for the deceased to disclose the names of real culprits to him. Though murder of a human being has been committed, yet hardly see any reason, especially in the absence of any direct evidence -to connect the petitioner with the alleged crime. No specific role has been attributed to the petitioner. What has been said above, it makes the case against the petitioner one of further inquiry. It has been held by Supreme Court of Pakistan in Muhammad Ismail v. Muhammad Rafique and another (PLD 1989 SC 585) that if the case of further inquiry is made out, then the accused cannot be denied the right of bail, Bail cannot be refused merely on the ground that the offence falls within the prohibitory clause of section 497, Cr.P.C. At bail stage if reasonable ground appeared that the person was not guilty of offence with which he was being charged, such person by virtue of subsection (2) of section 497, Cr.P.C. would be entitled to bail and prohibition contained in subsec tion (1) of section 497 Cr.P.C. would not create a bar for grant of bail. Although challan has been submitted and evidence of two prosecution witnesses has been recorded yet there is no likelihood of early conclusion of the trial. The co-accused of the petitioner has already been granted bail by this Court so following the rule of consistency, the petitioner is also entitled to the same relief. Resultantly, this petition is allowed and the petitioner is admitted to bail in the sum of Rs.100,000 with one surety in the like amount to the satisfaction to trial Court. The findings hereinabove are tentative in nature and shall not cause any prejudice at the time of final adjudication of the case. N.H.Q./M-434/L Bail allowed.