2019 PLP 1923 (SCMR)

MANZOOR AHMAD MALIK, J.

Through these petitions, the petitioners Aqsa Safdar (in Cr

1. P. No. 180-L of 2018), Safdar Ali and Munir Ahmad (in Crl. P. No. 209-L of 2018) have impugned the orders dated 30.01.2018 and 19.02.2018, whereby bail before arrest was refused to them by the learned Lahore High Court, Lahore in case FIR No. 280 dated 03.09.2015, offence under sections 302, 364, 201, 148, 149, P.P.C., registered at Police Station Ganda. Singh, District Kasur.

2. We have heard learned counsel for the parties at some length and have perused the available record.

3. During the course of arguments, it has been observed by us that prima facie there is no direct evidence against either of the petitioners at the moment. So far as petitioner Aqsa Safdar is concerned, learned Additional Prosecutor General under instructions of the S.P. (Investigation) present in Court with relevant record, confirms that there is no incriminating material against her except CDRs and a number of text messages between petitioner Aqsa Safdar and alleged deceased Tayyab Khushi but there is no detail of the contents of the conversation between the deceased and the petitioner. The learned Law Officer, under instructions, further confirms that nothing transpires from the text messages between the petitioner and Tayyab Khushi, alleged deceased that she had deceitfully called Tayyab Khushi at the place of occurrence i.e. the house of the petitioner. As regards the case against the petitioners Safdar Ali and Munir Ahmad, the learned Additional Prosecutor General, under instructions, states that initially the instant case was registered under section 364, P.P.C. and both the petitioners were arrested by the police qua the abduction of Tayyab Khushi but were allowed bail after arrest by the learned Magistrate Section 30, Kasur, vide order dated 27.05.2016; that subsequently section 302, P.P.C. has been added in the FIR. It has been observed by us that no incriminating material is available on record against these petitioners barring the statements of co-accused of the petitioners recorded before the police, which statements (statements of co-accused recorded in police custody) prima facie are not admissible in evidence. The learned Law Officer further states that both the petitioners Safdar Ali and Munir Ahmad remained on physical remand for 14 days. The learned Law Officer and learned counsel for the complainant have not been able to controvert the contention of learned counsel for the petitioners that under the law no further remand of these petitioners can be given to the police. It has also been observed by us that prima facie there is nothing on record which could confirm that Tayyab Khushi has actually died because his dead body has not been recovered as yet. In these circumstances, mala fide on the part of the complainant to falsely implicate the petitioners in this case cannot be ruled out.

4. For the foregoing, both the criminal petitions are converted into appeals and the same are allowed. The ad interim pre-arrest bails already granted to the appellants Aqsa Safdar, Safdar Ali and Munir Ahmad, vide order of this Court dated 04.05.2018, are hereby confirmed. MH/A-25/SC Bail granted.