2025 PLP 194 (MLD)

Muhammad Ijaz Khan, J.

This order is directed to dispose of an application filed by petitioner Syed Safeer Hussain Shah son of Fida Hussain Shah Sheikh Masood for the grant of post arrest bail in a case registered vide FIR No.101 dated 14.02.2024 under sections 302/34/109, P.P.C. read with section 15 The Khyber Pakhtunkhwa Arms Act, 2013 at Police Station Kot Najeebullah Haripur.

2. Precisely the facts of the present case are that Manzoor Elahi (cousin of the deceased) lodged a report to the local police whereby he charged unknown culprit(s) for committing Qatl-e-amd of his cousin namely Chan Parvez. His report was recorded in shape of Murasila which resulted into registration of instant FIR. During investigation, some of the legal heirs of the deceased as well as complainant recorded their statements under section 164, Cr.P.C whereby they charged present accused/petitioner and Asia Bibi (widow of the deceased) for the commission of offence.

3. Arguments of learned counsel for the parties as well as learned Assistant Advocate General appearing on behalf of State were heard in considerable detail and the record perused with their able assistance.

4. The record would show that initially nobody was charged in the FIR, however, subsequently the present accused/petitioner was arrested on the 6th day of occurrence and on the same day, the complainant recorded statement under section 164, Cr.P.C whereby the present accused/petitioner has been nominated on the ground that since during the police investigation, the present accused/petitioner has been found connected with the commission of offence on the basis of Call Record Data (CDR), whereof the present accused/petitioner has allegedly been shown in contact with the deceased along with co-accused Asia Bibi who was the wife of the deceased. The said Asia Bibi was also implicated in this case as an accused on the basis of same Call Record Data (CDR), however, in her case the learned trial court has granted her bail holding that the legal worth of the Call Record Data (CDR) is to be determined by the learned trial court after recording of the pro and contra evidence., however, benefit of the said ground has been refused to the present petitioner. Even otherwise, in the given facts and circumstances whether the mobile which was allegedly the ownership of the deceased and whether the mobile which was shown ownership of the present accused/petitioner are infact their ownership or not and as to what was the alleged conversation between the accused and the deceased are questions which are to be determined by the learned trial court after recording of the pro and contra evidence and thus for the time being case of the present accused/petitioner is one of further inquiry within the meaning of subsection (2) of section 497, Cr.P.C. In the case titled "Noor Muhammad v. The State and another", reported as 2020 SCMR 1049, the Supreme Court of Pakistan has found that if the case of the petitioner comes within the ambit of "further inquiry" under section 497(2), Cr.P.C he cannot be kept behind the bar even for a moment. Otherwise, liberty of a person is a precious right which has been guaranteed in the Constitution of Islamic Republic of Pakistan, 1973.

5. During the course of arguments, learned counsel for the respondent/complainant and Assistant Advocate General were confronted that whether except the Call Record Data (CDR), there is any other material to connect the present accused/petitioner with the commission of offence or not, their reply was that it is the Call Record Data (CDR) only which prima facie connect the present petitioner with the commission of offence, however, the Supreme Court of Pakistan in the case titled "Naveed Sattar v. The State and others" reported as 2024 SCMR 205, while admitting the accused to bail has observed that so far as the Call Data Record (CDR) is concerned, this Court in a number of cases has held that in absence of any concrete material the CDR is not a conclusive piece of evidence to ascertain the guilt or otherwise of an accused. Similarly, there is nothing on record to show that the photographs allegedly connecting the petitioner with the commission of the crime were ever sent for forensic examination, therefore, in view of the law laid down by this Court in Ishtiaq Ahmed Mirza v. Federation of Pakistan (PLD 2019 SC 675) it is unsafe to rely upon the same as a piece of evidence in a court of law.

6. Even otherwise, challan in this case has already been put in Court, therefore, further custody of the accused/petitioner is neither required to the prosecution nor the same would serve any useful purpose. In the case titled "Resham Khan and another v. The State through Prosecutor General Punjab, Lahore and another" reported as 2021 SCMR 2011, Supreme Court has observed that the basic idea is to enable the accused to answer criminal prosecution against him rather than to rot him behind the bar. Every accused is innocent until his guilt is proved and benefit of doubt can be extended to the accused even at bail stage if the facts of the case so warrant. The basic philosophy of criminal jurisprudence is that the prosecution has to prove its case beyond reasonable doubt and this principle applies at all stages including pre-trial and even at the time of deciding whether accused is entitled to bail or not.

7. Accordingly, this bail petition is allowed and the accused/petitioner Syed Safeer Hussain Shah is directed to be released on bail provided he furnishes bail bonds in the sum of five hundred thousand rupees (Rs.500,000/-) with two sureties in the like amount each to the satisfaction of the learned Illaqa Judicial Magistrate/MOD, who shall, ensure that the sureties must be his relatives or co-villagers, reliable and men of means. Observations recorded hereinabove are purely tentative in nature and should in no way prejudice an independent mind of learned trial court which needs to appraise the evidence strictly in accordance with law and merits of the case. JK/181/P Bail granted.