2016 PLP 183 (YLRN)

S.498

Penal Code (XLV of 1860), Ss. 302, 148, 149 & 109

Qatl-i-amd, rioting armed with deadly weapons and abetment

Pre-arrest bail, grant of

Single firearm injury

False implication, possibility of

Allegations against accused was that he threw red chillies in the eyes of deceased

Postmortem report was silent regarding red chillies being thrown in the eyes of deceased, hence, medical evidence was not corroborating ocular account

No red chillies were recovered from the spot to strengthen prosecution case

Possibility of false implication could not be ruled out as there was a general trend in society to involve maximum people of a family in criminal cases and throw the net as wide as possible

Both the parties were at daggers drawn and it could not be ruled out that accused could have been falsely implicated in the case

Deceased received only one firearm injury which was attributed to co-accused who was real brother of the accused

According to police investigation accused was not present at the spot

Accused was not required by police for investigation and nothing had to be recovered from him, therefore, it would serve no purpose to send accused behind the bars, as it was unnecessary burden upon the exchequer/State

Pre-arrest bail was allowed in circumstances. [Paras. 4 and 5 of the judgment] Muhammad Boota v. The State and others 2014 SCMR 1355; Arbab Ali v. Khamiso and others 1985 SCMR 195; Amir Ali and others v. The State 1984 SCMR 521 and Dr. Muhamamd Aslam v. The State 1993 SCMR 2288 rel. Ehsan Ullah for the Complainant. Ms. Nuzhat Bashir, D.P.G. along with Javed, S.I. for the State. ORDER ERUM SAJAD GULL, J.

Zulqarnain, petitioner seeks his bail before arrest in case FIR No.158/2015 dated 29.03.2015, offence under sections 302/109/148/149 P.P.C., registered at Police Station Peoples Colony, Gujranwala.

2. The only allegation in the FIR against the petitioner is that he threw red chilies in the eyes of the deceased Shahid.

3. Arguments heard. Record perused.

4. As per FIR, five accused were nominated and two were unknown. Out of the nominated accused persons, two are real brothers of the petitioner Zulqarnain. The other two nominated co-accused were discharged by the police as they were implicated under section 109, P.P.C. Prima facie the postmortem report is silent regarding red chilies being thrown in the eyes of the deceased, hence, the medical evidence is not corroborating the ocular account. No red chilies were recovered from the spot to strengthen the prosecution case. The possibility of false implication cannot be ruled out, as there is a general trend in our society to involve maximum people of a Family in criminal cases and throw the net as wide as possible. Admittedly both the parties are daggers drawn and it cannot be ruled out that the petitioner has been falsely implicated in this case. Reliance is placed upon "Muhammad Boota v. The State and others" 2014 SCMR 1355. The deceased has received only one firearm injury, which is attributed to Zia Ullah accused, who is real brother of the petitioner. The petitioner has joined the investigation. According to the police investigation, he was not present at the spot. It is yet to be ascertained whether the petitioner participated in the occurrence in any manner, which will be seen at the trial stage. It has been held by the Honourable Supreme Court of Pakistan that bail can be allowed in offences falling under the Prohibitory Clause of section 497, Cr.P.C., where there are sufficient grounds for further inquiry into the guilt of the accused and the Investigating Officer or the Court have come to the conclusion that the accused had not committed the non-bailable offence. Reliance is placed upon Arbab Ali v. Khamiso and others 1985 SCMR 195, Amir Ali and others v. The State 1984 SCMR 521, Dr. Muhammad Aslam v. The State 1993 SCMR 2288. The petitioner is a non-convict. He is no more required by the police for investigation. Nothing has to be recovered from him, therefore, it will serve no purpose to send the petitioner behind the bars, as this will be an un-necessary burden upon the exchequer/State.

5. In view of the above, this instant petition is allowed and the ad-interim pre-arrest bail already granted to the petitioner is confirmed subject to his furnishing fresh bail bonds in the sum of Rs.2,00,000/- (Rupees Two Lacs) with two sureties in the like amount to the satisfaction of the Trial Court. The observations made hereinabove are tentative in nature and are strictly confined to the decision of this bail petition only. MH/Z-12/L Bail allowed.