2016 PLP 1217 (SCMR)

ASIF SAEED KHAN KHOSA, J.

Through this petition Irsalan Zohaib petitioner has sought leave to appeal against the order dated 02.04.2015 passed by a learned Judge-in-Chamber of the Lahore High Court, Multan Bench, Multan in Criminal Miscellaneous No. 545-B of 2015 whereby post-arrest bail was refused to him in case FIR No.707 registered at Police Station Gaggu, District Vehari on 27.10.2014 in respect of offences under sections 302, 392, 109 and 411, P.P.C.

2. We have heard the learned counsel for the petitioner, the learned Additional Prosecutor-General, Punjab appearing for the State and the complainant appearing in person and have gone through the record of the case with their assistance.

3. According to the FIR itself the occurrence had taken place during a night and the culprits perpetrating the alleged offences had remained unknown till lodging of the FIR. The incident in issue had taken place on 27.10.2014 and the petitioner's name had surfaced in this case for the first time on 02.11.2014 through the statement made before the police by one Mehmood Akhtar who had claimed to have overheard a conversation taking place between the petitioner and his co-accused namely Zeeshan in a hotel regarding the present incident. On the basis of this information the petitioner had been arrested by the local police on 29.11.2014 and subsequently he was put to a test identification parade on 03.12.2014 wherein two out of the three eye-witnesses being relied upon by the prosecution had statedly correctly picked up the petitioner as one of the culprits whereas the third eye-witness had stated that the petitioner was not one of the culprits committing the alleged offences. Even the two eye-witnesses correctly picking up the petitioner had not attributed the fatal firearm injury to the petitioner and had maintained that it was Zeeshan co-accused who had fired at and killed the deceased. We note that in the impugned order the learned Judge-in-Chamber of the High Court had misread the record by observing that the petitioner stood attributed the fatal firearm injury to the deceased. During the investigation a sum of Rs. 1500/-, a pistol and a motorcycle had allegedly been recovered from the petitioner's custody but we note that none of the said articles and cash stands connected with the incident in issue so far. Although two criminal cases already stand registered against the petitioner apart from the present criminal case yet the said cases are not of theft, robbery or dacoity and, thus, the petitioner does not have the credentials or antecedents of a thief, robber or dacoit to his discredit. The investigation of this case has already been finalized and a Challan has been submitted and, thus, physical custody of the petitioner is not required at this juncture for the purposes of investigation.

4. For what has been discussed above we have found the case against the petitioner to be a case calling for further inquiry into his guilt within the purview of subsection (2) of section 497, Cr.P.C. This petition is, therefore, converted into an appeal and the same is allowed and consequently Irsalan Zohaib petitioner is admitted to bail in the above mentioned criminal case 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. MWA/I-2/SC Bail granted.