2012 PLP 184 (SCMR)

ASIF SAEED KHAN KHOSA, J.

Through this petition Allah Ditta petitioner has sought leave to appeal against the order dated 1-2-2011 passed by the honourable Chief Justice of the Lahore High Court, Lahore in Criminal Miscellaneous No. 1220-B of 2011 whereby post-arrest bail had been refused to the petitioner in case F.I.R. No.319 registered at Police Station Saddar, Bhakkar on 2-6-2010 in respect of an offence under section 302, P.P.C. read with sections 34 and 109, P.P.C.

2. After hearing the learned counsel for the parties and going through the record we have observed that occurrence in this case had taken place during a night, the same had remained un-witnessed and the culprits had initially remained unknown. After about sixteen days of lodging of the F.I.R. the petitioner and his two bothers namely Hussain Bakhsh and Sawan had been implicated in this case through a supplementary statement made by the complainant. One of the said brothers of the present petitioner namely Hussain Bakhsh has already been admitted to post-arrest bail by the Lahore High Court, Lahore vide order dated 2-12-2010 passed in Criminal Miscellaneous No. 13309-B of 2010 and the role attributed to the said co-accused was somewhat similar to that attributed to the present petitioner inasmuch as the said co-accused had allegedly held the deceased by his arm whereas the petitioner had allegedly pulled a rope around the neck of the deceased and, thus, they had both allegedly taken an active role in the murder in issue. The Lahore High Court, Lahore had found the case against the said co-accused namely Hussain Bakhsh to be one of further inquiry into his guilt and, thus, the same treatment ought also to have been extended to the petitioner as well. The learned counsel for the complainant and the learned Additional Prosecutor-General, Punjab appearing for the State have maintained that the case against the petitioner was distinguishable from that against the said co-accused because a mobile telephone set belonging to the deceased had been recovered at the instance of the petitioner but we have found that the said mobile telephone set had in fact been recovered from an open field and apparently nothing is available on the record so far to connect that mobile telephone set with the deceased. The evidence regarding wajtakkar and extra-judicial confession being relied upon by the prosecution against the petitioner and his above mentioned co-accused namely Hussain Bakhsh has already been opined by the Lahore High Court, Lahore in its order dated 2-12-2010 passed in Criminal Miscellaneous No. 13309-B of 2010 to be weak types of evidence and the evidentiary value whereof would be seen at the time of the trial. The investigation of this case has already been finalized and, thus, confirmed custody of the petitioner in jail is not likely to serve any beneficial purpose at this stage.

3. For what has been discussed above this petition is converted into an appeal and the same is allowed and, resultantly, Allah Ditta petitioner is admitted to bail subject to furnishing bail bond in the sum of Rs.1,00,000 (Rupees one hundred thousand only) with two sureties each in the like amount to the satisfaction of the learned trial Court. M.H./A-49/SC Bail allowed.