2008 PLP 446 (MLD)

HASNAT AHMAD KHAN, J.

Muhammad Sajjad petitioner has sought post-arrest bail in case F.I.R. No. 448, dated 12-9-2006 registered at Police Jatoi, Distt., Muzaffergarh in respect Of offence under section 302/34, P.P.C.

2. Precisely, the prosecution story as narrated in the F.I.R. is that Sajjad Hussain petitioner and Abdur Razaq co-accused had administered some poisonous material to Abid Hussain deceased who was son of the complainant which became cause of his death. Initially on the move of the complainant proceedings under section 174, Cr.P.C. were initiated. However, after receipt of the report of Chemical Examiner, the above-mentioned case was registered against the petitioner and his co-accused, namely, Abdur Razaq.

3. Learned counsel for the petitioner has contended that there was no direct evidence implicating the petitioner in the case who has been involved just on the basis of suspicion, that according to the school leaving certificate, date of birth of the petitioner is 10-10-1996 while according to the Medico-legal Report submitted by a Board constituted under the orders of the learned Additional Sessions Judge Muzaffargrah age of the petitioner has been given as 15 to 16 years, and therefore, he is juvenile within the meanings of Juvenile Justice System Ordinance, 2002; that during the investigation no incriminating material was recovered at the instance of the petitioner, therefore, a case of further inquiry has been made out in favour of the petitioner.

4. Conversely, the learned counsel for the State assisted by the learned counsel for the complainant has vehemently opposed this bail application on the ground that the petitioner has been specifically named in the F.I.R. and that Abdul Razzaq co-accused who is brother of the petitioner has become fugitive, from law.

5. Heard. Admittedly, there is no direct evidence implicating the petitioner in the crime. The complainant had just shown his suspicion that some poisonous material was administered to the deceased by the petitioner and his brother Abdul Razzaq co-accused. Nobody had seen the accused while administering such material to the deceased. Similarly during investigation no incriminating article has been recovered at the instance of the petitioner. Admittedly, the petitioner had no enmity with the deceased. During investigation it was found that barring positive report of Chemical Examiner no other incriminating material had become on the record against the petitioner. All the facts narrated above, prima facie show that a case of further inquiry within the ambit of section 497(2), Cr.P.C. has been made out in favour of the petitioner. It is established law that benefit of doubt can be granted to an accused even at bail stage. It is also established law that the ultimate conviction and incarceration of a guilty person can repair the wrong caused by a mistaken relief of interim bail granted to him, but no satisfactory reparation can be offered to an innocent man for his unjustified incarceration at any stage of the case albeit his acquittal in the long run. So whenever reasonable doubt arises with regard to the participation of an accused person in the crime, he should not be deprived of the benefit of bail. The bail can neither be withheld nor cancelled as punishment. In arriving at this conclusion, I am fortified by the dictum laid down by the Hon'ble Supreme Court in Tariq Bashir and five others v. The State (PLD 1995 SC 34). Besides that according to the opinion of the Medical Board, age of the petitioner is found to be between 15 to 16 years. Presently there are no reasonable grounds for believing that the accused had committed non-bailable offence. The petitioner is suffering incarceration since 16-10-2006. Bail cannot be denied to him simply on the ground that his elder brother has become fugitive from law. He cannot be made hostage for the arrest of his elder brother who in fact was employer of the deceased. To put in a nutshell a case for grant of bail has been made out in favour of the petitioner. Consequently, this petition is accepted and the petitioner is released on bail subject to his furnishing bail bonds for a bit heavier amount i.e. in the sum of Rs.2,00,000 with two sureties each in the like amount to the satisfaction of the learned trial Court. H.B.T./M-617/L Bail granted.