2010 P Cr (PLP)

HAFIZ ABDUL REHMAN ANSARI, J.

Through this petition under section 497, Cr.P.C. the petitioner seeks post-arrest bail in case F.I.R. No.342/2009 dated 2-9-2009 registered under sections 364,302, 201/34, P.P.C. with Police Station, Dera Raheem, District Sahiwal.

2. The post-arrest bail petition of the petitioner was dismissed by the learned Additional Sessions Judge, Sahiwal vide order, dated 18-12-2009.

3. The allegation against the petitioner, according to the F.I.R., is that on 27-10-2007 son of the complainant Muhammad Waqas aged about 12 years had gone outside the house at 2.15 p.m. and dis-appeared. The complainant came to know that Mst. Shazia and Muhammad Mumtaz have abducted Muhammad Waqas son of the complainant with the intention to commit his murder.

4. Learned counsel for the petitioner submits that occurrence took place on 27-10-2007 and the case was got registered on 2-9-2009, as such, there is an unexplained delay of 1 year, 10 months in lodging the F.I.R.; the prosecution case revolves around extra-judicial confession made before Muhammad Shafiq, Muhammad Ashraf and Mukhtar Ahmad before whom Mumtaz co-accused confessed that he and Mst. Shazia have committed mistake of killing Muhammad Waqas. Learned counsel submits that this extra-judicial confession has little evidentiary value which is much belated and not made before any responsible person of the locality. Learned counsel submitted that this is a case of no direct evidence. No recovery was effected from the petitioner. The petitioner was arrested on 5-9-2009 and was sent to judicial lock-up on the same day. Learned counsel submitted that the case of the petitioner is also covered under Proviso 2 of section 497, Cr.P.C. being a woman. Learned counsel placed reliance on Mst. Naziran v. The State 1990 PCr.LJ 1630; Bachal and 3 others v. The State 2000 YLR 1828, Mst. Zuhran Bibi and another v. The State 2003 PCr.LJ 1909 (Karachi) and "Ghulam Hussain v. The State 2004 PCr.LJ 288 (Lahore).

5. On the other hand learned Law Officer has vehemently opposed the bail petition on the ground that the offence falls within the prohibitory clause of section 497, Cr.P.C. there is no previous enmity between the complainant and the petitioner and other co-accused. He submitted that when Muhammad Waqas son of the complainant was missing on the same day he got recorded Rapt No.7 dated 10-11-2007; challan is submitted in the Court on 20-10-2009 Learned Law Officer further submitted that boy of tender age Muhammad Waqas saw both the accused in a compromising position in the house of the petitioner as they had developed illicit relations with each other on account of that both killed the boy and threw dead body in the field; weapon of offence `Kassi' has been recovered.

6. I have heard the learned counsel for the parties and perused the record.

7. The occurrence took place on 27-10-2007 and the F.I.R. was got registered on 2-9-2009 with unexplained delay of more than one year and seven months. The petitioner and co-accused Imtiaz are implicated in the said case on the basis of extra-judicial confession, which has little evidentiary value unless corroborated through independent strong evidence. It is unseen occurrence for which no direct evidence is available on record. Whether the deceased boy Muhammad Waqas saw the petitioner and Imtiaz in a compromising position on account of their illicit relations on that ground they killed the boy so that boy do not narrate the same story before some other person requires further investigation after recording of the evidence it will be determined. It is unseen occurrence presently at this stage the petitioner is involved on the basis of doubt and suspicion and the benefit of doubt always goes to the accused/petitioner. The case of the petitioner is covered under Proviso (2) of section 497, Cr.P.C.

8. In the light of above discussion I accept this bail petition subject to his furnishing bail bonds in the sum of Rs.300, 000 (three lac) with one surety in the like amount to the satisfaction of the learned trial Court. The observations in this bail granted order are of tentative in nature and this order will not prejudice the case of either side during trial. M.U.Y./S-44/L Bail granted.