2009 P Cr (PLP)

MUHAMMAD AHSAN BHOON, J.

Rehmat Ullah Butt, petitioner through this petition, seeks post-arrest bail in case F.I.R. No.470 dated 20-5-2008, offence under sections 302/324/34, P.P.C. registered at Police Station Sanda, Lahore.

2. Briefly the prosecution story of F.I.R. lodged by the complainant/deceased of present case Imran Butt is, that he was married 9 years back with Mst. Sumaira Bibi, daughter of Rehmat Ullah Butt, (accused-petitioners). Spouses remained issueless and due to the said reason the complainant and his wife often used to quarrel with each other; on 19-5-2008 at 1-15 p.m. the complainant went to the house of his in-laws, when accused Rehmat Ullah Butt, his father-in-law, Mst. Farida Taj, his mother-in-law, Mst. Sumaira Butt, his wife and Muhammad Rehan Butt, his brother-in-law were present and his father-in-law and brother-in-law abused him but the complainant insisted to take his wife along with him. Altercation continued for two hours and then accused Muhammad Rehan Butt and father-in-law of the complainant (petitioner) asked him to go away otherwise he would be done to death; wife of the complainant, mother-in-law and Mst. Nighat Bibi also misbehaved with him; being annoyed with. the situation the complainant came out of their house and meanwhile accused Muhammad Rehan Butt and Rehmat Ullah Butt sprinkled petrol from backside on the person of the complainant and put him on fire; the complainant raised hue and cry and in the meanwhile his brother Irfan, Javid Dar and parents to whom he had already informed about the situation came from Sialkot and saw the occurrence. Hence F.I.R. was registered.

3. The learned counsel for the petitioner has argued that joint allegation of sprinkling petrol has been levelled against the petitioner as well as his co-accused and during the course of investigation nothing incriminating material surfaced against the petitioner and the petitioner was declared innocent and was placed in Column No.2 of the challan and his plea of alibi was accepted by the Investigating Officer that at the time of occurrence he was present in the mosque to offer prayer and the requirements of section 174-A, Cr.P.C. has not been fulfilled, hence the F.I.R./statement of the deceased could not be treated as dying declaration against him.

4. On the other hand, learned D.P.-G. has vehemently opposed the prayer for grant of bail by arguing that the petitioner is well-nominated in the promptly lodged F.I.R.; that he has been attributed role of sprinkling petrol on the body of the deceased; that he is one of the main accused and the evidence in the shape of dying declaration along with evidence of P.W. Javed Dar and Irfan. Javed Dar is available on the file whereby he has been fully implicated in the case in question. He concedes that the petitioner was declared innocent and placed in Column No.2 of challan, however, contends that ipsi dixit of police is not binding upon the Court.

5. Heard. Record perused.

6. Admittedly the petitioner was father-in-law of the deceased/complainant, and during the course of investigation he was declared innocent and his name was placed in Column No.2 of the challan as his plea of alibi was accepted on the basis of admissible evidence. It is settled proposition of law that bail can be granted in a case of capital charge on the plea of alibi if peculiar facts and circumstances of the case so justify in favour of the grant of bail. It is over all consideration of the case, which qualifies an accused person for the grant of bail. All factors are to be weighed and assessed. In the present case number of witnesses appeared before the Investigating Officer who were present along with petitioner in the mosque to offer prayer at the time of alleged occurrence. It was concluded by the Investigating Officer in his report under section 173, Cr.P.C. that Imran Butt deceased while standing at Karamat Street sprinkled oil upon himself of his own and so many people of the vicinity appeared before the Investigating Officer to verify that it was a case of suicide and accordingly the Investigating Officer concluded so, yet he placed the petitioner in Column No.2 of the challan whereas co-accused of the petitioner Rehman Butt with same role even was not arrested by the police. The petitioner was sent to the judicial custody as he was formally arrested on 23-5-2008 prior to preparation of report under section 173, Cr.P.C. As far as the contention of the learned counsel for the petitioner is concerned that F.I.R./statement of the deceased cannot be considered as dying declaration, I would not like to comment upon the same at this stage because that may prejudice the case of either party as the learned trial Court is to see the admissibility or otherwise of the F.I.R./statement of the deceased. At present it is sufficient to observe that an amendment was made by Legislature in its wisdom in Code of Criminal Procedure and section 174-A, Cr.P.C. was inserted vide Ordinance LXIV of 2001 which is reproduced below for facility of reference:

"174-A (1) Where a person, grievously injured by burns through fire, kerosene oil, acid, chemical or by any other way, is brought to a Medical Officer on duty designated by the Provincial Government for this purpose or, such incident is reported to the Officer Incharge of a police station, such Medical Officer on duty, or, as the case may be, Officer Incharge of police station shall immediately give intimation thereof to the nearest Magistrate. Simultaneously, the Medical Officer on duty shall record the statement of the injured person immediately on arrival so as to ascertain the circumstances and cause of the burn injuries. The statement shall also be recorded by the Magistrate in case the injured person is still in a position to make the statement. (2) The Medical Officer on duty, or, as the case may be, the Magistrate, before recording the statement under subsection (1), shall satisfy himself that the injured person is not under any threat or duress. The statement so recorded shall be forwarded to the Sessions Judge and also to the District Superintendent of Police and Officer Incharge of the police station, for such action as may be necessary under this Code. (3) If the injured, person is unable, for any reason, to make the statement, before the Magistrate, his statement recorded by the Medical Officer on duty under subsection (1) shall be sent in sealed cover to the Magistrate or the trial Court if it is other than the Magistrate and may be accepted in evidence as a dying declaration if the injured person expires."

7. I may observe here that none of the requirements of law envisaged under section 174-A, Cr.P.C. has been fulfilled in the case in question for recording statement of the deceased as a dying declaration.

8. For what has been discussed above, I am of the considered view that case of the petitioner qua his guilt is open to further inquiry and falls within the purview of subsection (2) of section 497, Cr.P.C. Resultantly, this petition is allowed and petitioner is admitted to bail provided he furnishes bail bonds in the sum of Rs.1,00,000 with one surety in the like amount to the satisfaction of the learned trial Court.

9. Any observations made above shall be tentative in nature and shall not prejudice the case of either party at the time of trial. AMR/R-47/L Bail granted.