2009 PLP 816 (YLR)

RAJA SAEED AKRAM KHAN J.

Petitioner seeks post-arrest bail in case F.I.R. No.256 dated 20-12-2007 offences under sections 302/34, 201/109, P.P.C. registered with police station Tarnol, Islamabad.

2. Allegation against the petitioner is that he took his younger brother with him (deceased), along with his co-accused, committed his murder and took dead body in the vehicle.

3. Learned counsel for the petitioner has contended that allegation against the petitioner is false, frivolous and concocted, based upon mala fide intention; that the prosecution failed to collect any concrete evidence against the petitioner during the physical remand of 10-days; that no specific role has been attributed to the petitioner; that F.I.R. was registered after getting the information from other person. He adds that occurrence took place on 19-12-2007 at 10: P.M, whereas F.I.R. was lodged on 20-12-2007 at 12-35 a.m, whereas distance of the police Station from the place of occurrence was 6-Km; that the main accused of the case is still absconder; that admittedly, petitioner had no business transaction with the deceased; that during the investigation, number of persons appeared before Investigating Officer and submitted their affidavits regarding the innocence of the petitioner; therefore, he was declared innocent and challan was submitted while placing his name in column No.2; that the matter was also inquired by A.S.P./ D.S.P.O., who also observed that complainant of the case was not able to produce any evidence against the petitioner, which makes the case of the petitioner as one of further inquiry under section 497(2) of Cr.P.C.; that petitioner remained absconder, but this cannot be made a sole ground for the refusal of bail, when the case is otherwise made out; that no injury was inflicted to the deceased; that dead body was recovered from Lahore, and petitioner does not figure anywhere in the said recovery; that petitioner was an eye-witness in another case, that is why, he has been involved in this case. Learned counsel for the petitioner relied upon the case laws Fayyaz Ali Khan v. The State (2007 Crl. L.J. 160), Muhammad Asghar v. The State (2002 SCMR 1299), Kashif v. The State 2005 PCr.LJ 462, Farooq Shah and 2 others v. The State 2008 PCr.LJ 1419 and Nazir Ahmed alias Bhillu v. The Siate (2008'PCr.LJ 274).

4. On the other hand, learned counsel for the complainant has strongly opposed the bail on the ground that name of the petitioner is mentioned in F.I.R. with specific role; that he actively participated in the occurrence; that empties were recovered from the spot, which is one of the corroborated evidence; that he remained absconder for the six months and no explanation in this regard has been given and he himself not surrendered before Investigating Officer, but he was arrested after declaring him proclaimed offender; that it is a case of common intention; that the case laws referred by the learned counsel for the petitioner are distinguishable from the facts and circumstances of the present case; that findings of the police is not binding on the Court and plea of alibi is an afterthought, which cannot be taken into consideration at the bail stage. He has relied upon Abid Sohail v. The State (2006 PCr.LJ 864), Irfan Alias Kalu v. The State (2006 PCr.LJ 598), Allandino and 6 others v. The State (2003 PCr.LJ 135), Ghulam Rasool and another v. The State (PLD 2001 Lahore 45), Khial Gul and another v. Sherzada and another 2002 PCr.LJ 1054.

5. Learned Federal Counsel adopted the arguments of learned counsel for the complainant.

6. Arguments heard. Record perused.

7. Admittedly, the petitioner was declared innocent during the course of investigation, and this fact was also verified by A.S.P./D.S.P.O. who after inquiry has observed that complainant failed to produce any evidence regarding presence of the petitioner on the spot, which makes case of the petitioner as one of the further inquiry under section 497(2), Cr.P.C,. which provides that "If it appears to the Court at any stage that there are no reasonable grounds for believing that accused committed non-bailable offence, but there are sufficient grounds for further enquiry into the guilt, such accused shall be released on bail, but it depends upon peculiar facts of each case and no hard and fast rule can be laid down for that purpose. Sufficient ground for further enquiry into his guilt, which means that he may not be convicted of the charge under section 302, P.P.C. and acquitted or convicted for a lesser offence". If such situation arises, even the commencement of trial does not bar this Court to grant bail as laid down in a case Muhammad Ismail v. Muhammad Rafique and another (PLD 1989 SC 585), Saeed v. The State (2008 PCr.LJ 726) and Javed Iqbal v. The State (2008 PCr.LJ 1578).

8. As far as the abscondence of the petitioner/accused is concerned, although the abscondence of an accused is not conclusive by itself to establish his guilt and its probative value depends on the facts and circumstances of each particular case and would not disentitle him to the grant of bail on this ground alone, when there is no other evidence with the prosecution, if otherwise, he is entitled to bail. Nothing has been recovered from the petitioner. Although the ipsi-dixit of the police is not binding upon the Court, yet it can be considered as one of the relevant factor at the bail stage as laid down in 2007 PCr.LJ 1274.

9. Question of common intention shall be determined at the trial stage, after recording evidence. Deeper scrutiny of evidence is not' warranted under the law and only tentative assessment can be made. .Investigation of the case has been completed and the petitioner is no more required for further investigation. He is behind the bars since his arrest.

10. For what has been discussed above, I am inclined to accept this bail application. Petitioner is directed to be released on bail, subject to furnishing bail bonds in the sum of Rs.1,00,000 (Rupees one lac), with one local surety in the like amount to the satisfaction of the trial Court. N.H.Q./M-50/Isl. Bail allowed.