2021 PLP 1390 (MLD)

TARIQ SALEEM SHEIKH, J.

The Petitioner is booked in case FIR No. 1915/2018 dated 23-09-2018 which is registered at Police Station Kahna, District Lahore, for offences under Sections 302/324/452/337-A(i)/337-F(iii)/34, P.P.C.

2. As per FIR, the prosecution case is that on 23-09-2018 at about 08:30 p.m. the Petitioner and his co-accused in furtherance of their common intention trespassed into the Complainant's house while armed with different weapons and attacked the inmates. As a result, Haider and Muhammad Azam were killed and Complainant Muhammad Latif and Nazim were injured.

3. Learned counsel for the Petitioner contended that the Petitioner was innocent. He argued that, firstly, there was a family dispute between the parties so the Complainant had a strong motive to falsely implicate him in this case. Secondly, there were material contradictions in the contents of the FIR and the medical evidence brought on record. Further, co-accused Muhammad Yaqoob had been declared innocent by the police during investigation because the complainant party could not prove his presence at the place of occurrence at the relevant time. These circumstances made the prosecution story extremely doubtful. Lastly, police had completed the investigation and did not require the Petitioner for any further probe. He prayed that this application be accepted and the Petitioner may be admitted to post-arrest bail.

4. The learned Law Officer assisted by the learned counsel for the Complainant controverted the above contentions. He argued that the occurrence was pre-planned. The Petitioner and his co-accused trespassed into the Complainant's house and mercilessly killed two persons and injured two others. This not only caused loss to the complainant party but also created terror in the locality. He further submitted that the ocular account was corroborated by the medical evidence and recovery of pistol from the Petitioner which matched with the crime empties collected from the spot. Lastly, the Petitioner had a strong motive to commit the offence which was duly proved during the investigation. He maintained that the Petitioner was not entitled to the concession of bail and prayed for dismissal of this application.

5. Arguments heard. Record perused.

6. According to the prosecution, the occurrence took place on 23-09-2018 at 8:30 p.m. and the FIR was lodged at 10:02 p.m. on the same day. The Petitioner was nominated in the FIR with the allegation that he was armed with pistol and shot at Haider in right flank and then fired three shots at the Complainant which hit him on right thigh, left thigh and right ankle. Interestingly, on 23-09-2018 the Complainant made a supplementary statement in which he exonerated the Petitioner to the extent of the injury which he allegedly caused to Haider and attributed the same to co-accused Zubair. Prima facie, this was done because the post-mortem report of Haider deceased showed that Injury No. 1-B on the outer side of abdomen was an exit wound. Apart from this, even the MLC of Complainant Muhammad Latif is in conflict with the FIR. The Complainant alleged that the Petitioner caused him three injuries but MLC shows only two. There is no injury on his right ankle. It is by now well settled where medical evidence is in conflict with ocular account benefit of doubt must be extended to the accused even at the bail stage. Reliance is placed on "Syed Khalid Hussain Shah v. The State and another" (2014 SCMR 12) and "Awal Khan and 7 others v. The Sate through AG-KPK and another" (2017 SCMR 538).

7. During the investigation the police declared Muhammad Yaqoob innocent because his presence at the place of occurrence at the relevant time was not proved. The Complainant has involved the Petitioner in this case along with his father and two brothers. Possibility cannot be ruled out that he has spread wider net to implicate maximum people in this case.

8. For all the above reasons further inquiry is required to determine the Petitioner's guilt. The evidentiary value of the alleged recovery of crime weapon and positive forensic report cannot be determined at this stage as it would involve deeper appreciation of evidence which is not permissible while deciding bail applications.

9. The Petitioner is behind the bars since 23-10-2018. Police have completed their investigation and do not require him for further probe. Since his trial is not likely to be concluded in the foreseeable future, his continuous incarceration could not serve any useful purpose.

10. In view of the foregoing, this application is accepted and the Petitioner is admitted to post-arrest bail subject to his furnishing bail bond in the sum of Rs.300,000/- (Rupees three hundred thousand) with one surety in the like amount to the satisfaction of the learned trial Court.

11. Needless to say that the observations made in this order are tentative in nature. The learned trial Court shall decide the case strictly on merits without being influenced by them in any manner. KMZ/B-8/L Order accordingly.