2013 PLP 692 (YLR)

SHAHID HAMEED DAR, J.

Through this single order, I intend to dispose of two bail applications, one (Criminal Miscellaneous No.13838-B of 2011) moved by Muhammad Rafiq accused-petitioner for seeking bail before arrest and the other (Criminal Miscellaneous No.14047-B of 2011) moved by Muhammad Maalik accused-petitioner for seeking post-arrest bail, in case F.I.R. No.113, dated 18-3-2011, under sections 302, 34 P.P.C., registered at Police Station Malka Hans, District Pakpattan Sharif and in private complaint titled "Syed Mazhar Abbas Shah v. Muhammad Malik and 2 others" filed for offences under section 302, 34, P.P.C. as well as in another private complaint titled "Munawar Hussain v. Mst.Nasreen Bibi" filed for an offence under section 302 P.P.C. in the perspective of pendency of both the private complaints.

2. Both the learned counsel for the petitioners submit in unison that none of the accused-petitioners is named in the F.I.R.; no incriminating evidence could be collected during the course of investigation by the Investigating Officer against accused Muhammad Rafiq and the evidence brought on the record against Muhammad Maalik accused (petitioner) does not corroborate the prosecution case in any manner; lastly submit that the petitioners' case constitutes need for further inquiry into their guilt so they may be granted the relief prayed for.

3. On the other hand, learned Deputy Prosecutor-General Punjab assisted by learned counsel for the complainant opposes with the contention that witnesses Imdad Hussain, Dildar Hussain and Muhammad Iqbal joined investigation on 20-8-2011 and implicated Muhammad Maalik accused through direct depositions to the effect that he (Maalik) along with Mst.Nasreen Bibi hatched-up a conspiracy at a hotel, 10/15 days prior to the occurrence and chatted about their intentions to murder Zafar Ali Shah (deceased), the husband of Mst.Nasreen Bibi as he had learnt about the illicit liaison between them (Maalik and Mst.Nasreen Bibi); in the private complaint filed by Syed Mazhar Abbas Shah on 9-7-2011 both the petitioners have been burdened with the specific liability of firing effectively at Zafar Ali Shah (deceased) and thereby committing his instantaneous murder; the medical evidence fully corroborates the text of the noted private complaint the trial has commenced, hence petitioners plea for bail may not be entertained.

4. Having heard learned counsel for the parties and perused the record, I find that Munawar Hussain Shah reported the crime vide F.I.R. No.113 of 2011, dated 18-3-2011, for offences under sections 302, 34, P.P.C. at Police Station Malka Hans, District Pakpattan Sharif with the precise allegation that two unknown accused were seen by him and other eye-witnesses hurriedly leaving the spot after having committed the murder of Zafar Ali Shah. Munawar Hussain Shah (complainant) filed a private complaint on 17-5-2011 almost two months after the occurrence against Mst.Nasreen Bibi for an offence under section 302, P.P.C. with a categorical assertion that he and the other eye-witnesses had witnessed Mst.Nasreen Bibi accused firing through a .12 bore gun at her husband Zafar Ali Shah and thereby committing his instantaneous murder. During pendency of this complaint case, Syed Mazhar Abbas Shah, a paternal nephew of the deceased chipped in, with a fresh private complaint against Muhammad Maalik, Muhammad Rafiq (petitioners) and Mst.Nasreen Bibi with a specific version that Muhammad Maalik (petitioner) being armed with .12 bore gun had fired at the scalp of the deceased whereas Muhammad Rafiq accused-petitioner fired with his .12 bore gun right into the chest of the deceased and thereby committed his murder. So far as the investigation record is concerned, the name of the petitioner Muhammad Rafiq does not figure therein so he happens to be an alien to the prosecution's case. The evidence produced by the complainant against Muhammad Maalik (petitioner) during investigation, at the most hints at a probability qua the latter, being an abettor of the crime as mentioned in the F.I.R. The complainant of F.I.R. and the eye-witnesses cited therein categorically stated before the learned trial Court in private complaint case, that Zafar Ali Shah had been done to death by Mst.Nasreen Bibi. Syed Mazhar Abbas Shah however made an attempt to eclipse the previous proceedings qua the challan case and the private complaint case filed by Munawar Hussain Shah, through another private complaint, mentioned hereinabove and thus changed the whole scenario by presenting a new set of eye-witnesses who had neither joined the investigation nor stated anything against the accused-petitioners during the course of investigation.

5. In view of the aforesaid circumstances, I am of the considered view that the petitioners' case constitutes need for further inquiry into their guilt as envisaged by section 497(2), Cr.P.C. and their false implication in this case due to some hidden motives of the complainant side led by Syed Mazhar Abbas Shah cannot be ruled out. At the moment, it appears to be a case of three versions and which one is probable or nearer to truth can only be determined by the learned trial Court after recording evidence of the parties during trial. It has been vociferously argued by learned counsel for the complainant that trial has commenced or it is likely to commence in near future so petitioners' bail plea may not be entertained, I am afraid, is not based on any element of cogency, as an accused would be entitled to grant of bail as a matter of right, once, court reaches the conclusion that his case calls for further probe into his guilt within the scope of further inquiry as contemplated by the aforesaid provision of law. Guidance in this regard may be had from case titled "Muhammad Ismail v. Muhammad Rafique and another" (PLD 1989 SC 585), therefore, I accept both the above noted bail applications.

6. The ad interim pre-arrest bail granted to Muhammad Rafiq accused-petitioner vide order dated 18-10-2011 is confirmed subject to furnishing fresh bail bonds in the sum of Rs.1,00,000 with two sureties each in the like amount to the satisfaction of learned trial Court. Muhammad Maalik, accused-petitioner is admitted to post-arrest bail provided he furnishes bail bonds in the sum of Rs.1,00,000 with two sureties each in the like amount to the satisfaction of learned trial Court.

7. Before parting with this order, it is clarified that the observations contained herein are tentative in nature and have no bearing upon the merits of the case. MWA/K-10/L Bail confirmed.