2012 P Cr (PLP)

SHAUKAT AZIZ SIDDIQUI, J.

Petitioner Afraz Mehmood seeks bail after arrest in Case F.I.R. No.215, dated 25-7-2011, offence under section 302/109, P.P.C., registered at Police Station Bahrakahu, District, Islamabad.

2. Briefly, the prosecution story as gleans out from the F.I.R. is that complainant, Ashiq Hussain through an application addressed to SHO, stated that he is resident of Azad Kashmir and his real brother namely, Maqsood Khan, (deceased) aged about 36 years was married, having two sons and three daughters, was doing his job in the Holy Family Hospital, Rawalpindi. He further stated that, Ifraheem, son of. Muhammad Hussain (real brother of the present petitioner) is their relative who is residing in "Nai Abadi, Bahrakahu". That on 23-4-2011, he brought brother of the complainant Maqsood Khan to Nai Abadi, Bahrakahu and in the morning of 24-4-2011 he received information from the Holy Family Hospital that his brother Maqsood Khan had died. On this information he reached at Holy Family Hospital from where he acquired knowledge that dead body of his brother had been taken to PIMS Hospital by the Police of Bahrakahu, Police Station. He further states that Doctor of the Holy Family Hospital showed suspicion about the torture inflicted upon the body of his brother as his brother was not suffering from any ailment. He further mentioned that he got conducted the postmortem and made the statement that he would make his statement after the postmortem examination. The complainant however, explains that on receipt of the report of the Chemical Examiner he came to know that death of his brother was due to result of poisoning. He alleges that Ifraheen in connivance with his brothers Afraz (present petitioner) and Naeem administered poison to his brother. Motive of the occurrence advanced by the complainant is that his brother, Shakir gave an amount of Rs.2,10,000 for taking him abroad but after three months, he was sent back to Pakistan. Deceased used to demand that amount from Ifraheem.

3. The petitioner applied for bail after arrest before the learned Sessions Judge, Islamabad who entrusted the same to Additional Sessions Judge. The request of the bail was declined by the learned ASJ vide impugned order dated 31-10-2011:

4. The learned counsel for the petitioner has argued that from the contents of the FIR., the death of the deceased appears to be shrouded in mystery. The complainant himself was not certain about the cause of death, therefore, he firstly deferred the statement till the conduct of postmortem and thereafter waited till receipt of the report of Chemical Examiner. The learned counsel submits that no source whatsoever, has been mentioned by the complainant with regard to acquiring any knowledge about the occurrence and about the mannerism in which it has taken ,place. The learned counsel for the petitioner further submits that even if the prosecution story is taken as gospel truth, even then no specific role has been ascribed to the present petitioner except of abetment which makes the case of the petitioner one of further enquiry and probe and makes him entitle to the concession of bail as envisaged under section 497(2), Cr.P.C. The learned counsel for the petitioner placed reliance on the following case-law, Ibrahim and others v. The State, 2009 SCMR 407, Muhammad Jamil v. Shaukat .Ali, 1996 SCMR 1685, 2002 MLD 1151, Malik Muhammad Ishaq v. The State and others, 2011 SCMR 1350, Maulana Abdul Aziz v. The State, 2009 SCMR 1210, Ghulam Sarwar and others v. Sajid Ullah and others, 2005 SCMR 1054, Abaid-ur-Rehman v. The State, 1989 MLD 4188 (Lahore) and Mehar Din v. Nazar Hussain and 3 others, 1979 SCMR 351

5. Conversely, the learned counsel for the complainant assisted by the learned standing counsel submits that although no direct evidence or material is available- on the file to connect the petitioner with the commission of the alleged offence, except the statement of the complainant but since the offence falls with the prohibitory clause of 497, Cr.P.C., therefore, the concession of bail may be withheld more particularly when challan has already been submitted before the Court. He further submits that the co-accused of the present petitioner who are his real brothers -are absconding, therefore, the petitioner is not entitled to the concession of the bail.

6. I have heard the arguments of learned counsels and perused the record.

7. There is inordinate delay of three months in lodging the F.I.R. which has not been reasonably explained. On the contrary, the conduct of the complainant and local police is not only dubious but enigmatic as well. The record reveals that petitioner remained on physical remand spreading over ten days and during this period nothing incriminating was recovered from the person of the petitioner, to connect him with the commission of the alleged offence even prima facie. By mentioning the name of any accused after due deliberations spread over a period of three months, prima facie, makes the case of the prosecution highly doubtful and it is well-settled law with the mandate of the dictums of the superior courts of the country that benefit of doubt even at bail stage has to be extended to the accused. It is also a well-settled law by now, that abscontion of any member of the family cannot be made basis of withholding the concession of bail when case of any accused clearly falls within the ambit of section 497(2), Cr.P.C. It has been held time and again by the Superior Courts that commencement of trial does not come in the way of exercising discretion, to grant bail when any accused person successfully been able to bring his case within the ambit of further enquiry. Reliance in this regard is being placed on the case of Muhammad Ismail v. Muhammad Rafiq and another, reported as PLD 1989 SC

585. The question of the liberty of the citizens has been jealously safeguarded by the Superior Courts of the Country, therefore, instant petition is allowed. The petitioner is admitted to bail subject to furnishing of bail bonds to the tune of Rs.2,00,000 with one surety in the like amount the satisfaction of the trial Court.

8. Before parting with .the judgment, I may add that courts of District are expected to be dynamic in their. approach while administering justice instead of causal appreciation and by acting in a mechanical fashion. The justification for the curtailment of the liberty of any accused/citizen must be convincing, indoctrinate, logical, suborn and in consonance with the law laid down' by the Superior Courts of the Country, rather than travelling on conjecture, suppositions, surmises and feigned reasoning. M.W.A./22/ISL.????????????????????????????????????????????????????????????????????????????????????????????? Bail granted.