2011 PLP 2690 (YLR)

CH. IFTIKHAR HUSSAIN, J.

The learned counsel for the petitioner has filed the certified copy of the private complaint dated 5-10-2010, titled Mst. Fareea Bibi v. Zainab Bibi and others, the list of witnesses, her cursory statement recorded on 25-11-2010 and that of Noor Jahania dated 6-12-2010 therein, statement of her learned counsel closing her cursory evidence and order dated 31-1-2011, recorded by the learned Additional Sessions Judge, Arifwala summoning the accused in the same.

2. Further arguments heard.

3. Petitioner Muhammad Sabir through the instant petition has prayed for post-arrest bail in case F.I.R. No. 123 registered under sections 302/201/148/149 and 109, P.P.C. with Police Station Ahmad Yar, District Pakpattan Sharif on 24-5-2010.

4. Briefly the prosecution case against him as per the F.I.R. is that on 8-5-2010, he along with Tariq, Mst. Zainab and Abdus Sattar, in furtherance of their common intention, at the instance of Waryam and Fayaz, have committed the Qatl-e-amd of his father Muhammad Bukhsh.

5. After hearing the learned counsel for the parties and perusing the record, I find that according to the F.I.R., it is an eye witnessed occurrence and there is delay of about sixteen days in reporting the same to the police.

6. The learned D.P.-G. has submitted that the complainant on the day of the registration of the case has made a supplementary statement, in which he has named them with the specific role of committing the Qatl-e-amd of the deceased.

7. As said above that the F.I.R. was registered about sixteen days after the alleged incident and according to the same, it was an un witnessed occurrence. The supplementary statement of the complainant, if any, regarding the alleged incident containing different version than the one in the F.I.R., is a noticeable thing. However, I would avoid to make any further comment on the same at such a stage as it may not prejudice any body's at trial.

8. The learned D.P.-G. assisted by the learned counsel for the complainant has submitted that there is the evidence of the extra-judicial confession against hint.

9. It is interesting to note that on 6-7-2010, Mr. Tariq Mehmood Bajwa, learned Additional Sessions Judge, Arifwala has allowed bail to his mother Mst. Zainab with the following observations:-- "A careful and tentative perusal of the file reveals that the complainant did not view the occurrence and the petitioner was implicated on the basis of suspicion. It is well-settled, suspicion however, strong cannot take the place of evidence. At present, no incriminating material is available in record to connect the petitioner with the instant offence, so the case of the petitioner falls within the ambit of further inquiry. Mere heinousness of offence is not enough to decline the prayed relief, the petitioner is a woman and her further incarceration in jail would not serve or advance the prosecution case".

10. The stance of his learned counsel is that the evidence of joint extra judicial confession was created after such observation of the learned Additional Sessions Judge in his order dated 6-7-2010, recorded on the post-arrest bail petition of his mother Mst. Zainab Bibi.

11. The learned D.P.-G. and the learned counsel for the complainant have admitted that such statements were recorded on 6-7-2010. These, thus, were about two months after the alleged incident. Even otherwise, this ex facie shows that his stated joint extra judicial confession and of co-accused Tariq was made during the investigation. So, it may be in the presence of the police or during their custody with E them.

12. All these facts require determination of the evidentiary value of such joint extra judicial confession of the accused: In this regard reliance is placed upon the case of Ameer Ali v. The State (2004 PCr.LJ 1649 Lahore) and Rafique alias Rafique Ahmed v. The State (PLD 2002 Karachi 317).

13. The same can only be done at trial after recording of evidence and not at such a stage. Now only tentative assessment of the material available on the record is to be made.

14. Besides than this, Mst. Fareeda Bibi, who is said to be the sister of the deceased has brought the private complaint regarding the alleged incident against Mst. Zainab Bibi and others including him. I have gone through her version in such complaint. This prima facie is different to the one as contained in the F.I.R.

15. All such facts essentially require further inquiry into his (petitioner) guilt. His case, therefore, is covered under subsection (2) of section 497, Cr.P.C.

16. Besides than this, his co-accused Tariq, whose role at least is identical to him, has been allowed bail vide order dated 28-8-2010, recorded by the learned Additional Sessions Judge; Arifwala. He has observed his case to be one of further inquiry. Hence, from such an angle, the rule of consistency is also attracted to his case.

17. He is stated to be behind the bars for the last many months and previous non-convict, which has not been controverted by the other side.

18. I, therefore, allowing this petition, admit him to bail subject to his furnishing' bail .bonds in the sum of Rs.1,00,000 (Rupees one lac) with one surety in the like amount to the satisfaction of the learned trial Court. N.H.Q./M-830/L???????????????????????????????????????????????????????????????????????????????????????????? Bail granted.