2017 PLP 1263 (YLR)

RAJA SHAHID MEHMOOD ABBASI, J.

Through this petition under section 497, Cr.P.C. the petitioner Aman Ullah, seeks post-arrest bail in case FIR No.431 dated 21.06.2016 under section 302/337-F(v)/34, P.P.C., registered at Police Station New Town Rawalpindi.

2. Brief facts of the case are that the crime report has been lodged by one Maqbool Khan, complainant alleging therein that on 21.06.2016, while he along with his nephew Nasim Mehboob and sister Mst. Nusrat Parveen were proceeding towards Commercial Market when at 09:45 pm reached near Banser Plaza, two unknown persons while riding on motorcycle intercepted them and the person sitting on rare seat made straight fire shots with his pistol .30-bore at Nasim Mehboob and Mst. Nusrat Parveen. Nasim Mehboob received two injuries, one on shoulder and other on left lower leg whereas one fire hit on the left foot of Mst. Nusrat Parveen, who fell down on the ground and later on Nasim Mehboob succumbed to the injuries in the hospital.

3. According to the prosecution version the occurrence in this case as taken place at about 9:45 p.m. and according to the crime report lodged by the complainant the culprits perpetrating the alleged offence had remained unknown identified at the spot. Admittedly, the petitioner had not figured in the crime report in any capacity whatsoever till 21-10-2016 when he was apprehended by the police under section 54, Cr.P.C. Thereafter, the petitioner was transmitted to jail for the purposes of identification parade, where allegedly he was identified by the prosecution witnesses Maqbool Khan and his sister Mst. Nusrat Parveen. Admittedly, in the crime report no motive was given for the alleged occurrence. Subsequently, on the disclosure of the accused before the police, it transpires that it was the case of robbery. The role attributed to the petitioner is that he was driving the motorcycle but no motorcycle was recovered during the physical remand, only pistol was recovered from him, which is not much helpful to the prosecution as according to the prosecution witnesses they had not received injuries at the hands of the present petitioner. Admittedly, the occurrence has taken place on 21-06-2016 and the identification parade was conducted on 22-10-2016 after the delay of four months. Learned counsel for the petitioner has pointed out some illegalities and contradictions in the proceedings of the identification parade but any observation in this regard will certainly prejudice the case of either side and that would be appreciated by the learned Trial Court after recording of evidence. There is no other evidence available on the record except disclosure before police and identification parade. Even in the said proceedings the main role is attributed to the co-accused. The involvement of the petitioner and, legality of the evidence would certainly be determined by the trial court after recording the evidence. Therefore, complicity of the petitioner is necessarily a case of further inquiry as he has not caused any injury to the deceased as well as other prosecution witnesses. The petitioner has no previous antecedents in his record. Investigation to his extent is complete and he is no more required for physical custody. Sufficient reasons exist to believe that the petitioner's case calls for further inquiry into his guilt as contemplated in subsection (2) of section 497, Cr.P.C. Mere heinousness of offence is no ground to decline bail after arrest to an accused who is otherwise entitled for the concession of bail. Reliance in this respect is placed on case titled "Tariq Bashir v. The State (PLD 1995 SC 34) wherein it is held as under:-- "Grant or refusal of bail in cases punishable with death or imprisonment for life or for 10 years must be determined judiciously having regard to the facts and circumstances of each case...Provisions of S.497, Cr.P.C. are not punitive in nature as regards offences punishable with death, or imprisonment for life, imprisonment for ten years, as there is no concept of punishment before judgment in law." Deeper appreciation or evaluation of evidence at bail stage is neither desirable nor permissible and only tentative assessment can be made. Moreover, the petitioner has produced his medical history, which reflects that only his one kidney is functioning. He has got chronic kidney disease (CKD) with urinary divergent and needs repeated consultation and care of neurologist. He was further advised operation for the closure of vesicostomy. The complainant could not rebut the sickness of the petitioner. The courts are required to made tentative assessment with pure judicial approach of all the material available on record whether it goes in favour of the prosecution or in favour of defence before making a decision. Reliance is placed on Zaigham Ashraf v. The State and another (2016 SCMR 18), wherein at para 10 of the judgment the Hon'ble Supreme Court of Pakistan has held that:-- "In the case of Amir v. The State (PLD 1972 SC 277), it was held that, "for purposes of bail, law not to be stretched in favour of prosecution-benefit of doubt, if any arising, must go to the accused even at bail stage." Similar view was taken in the case of Manzoor v. The State (PLD 1972 SC 81). These principles so laid down, are based on enunciation of law in interpreting the provision of section 497, Cr.P.C. and broader principle of justice. Till day no departure or deviation has been made there from by this court then, these are principles of law and having binding affect and shall be construed as guiding principles by the courts in the matter of grant or refusal of bail."

4. Keeping in view the facts and circumstances of the case and evidence so far collected against the petitioner, this petition is allowed and the petitioner Amanullah, is enlarged on bail subject to his furnishing, bail bonds in the sum of Rs.2,00,000/- (Rupees two lac) with two sureties in the like amount to the satisfaction of the learned trial court. However, with the concurrence of both the parties the learned trial court is directed to conclude the trial within four months after receipt of the order of this Court under intimation to the Deputy Registrar (Judl.) of this Bench. JK/A-23/L Petition allowed.