2002 PLP 1209 (YLR)

Tahir Mahmood for the Complainant. Masood Sabir for the State. Allah Ditta son of Malik Muhammad Ramzan, petitioner has sought his post‑arrest bail in a case F.I.R. No.263 of 2001 registered at Police Station Saddar Jalalpur, Multan, on 20‑7‑2001, for offences under sections 302/148/149/34, P.P.C.

2. According to the story as given in the F.I.R., Abdullah deceased, younger brother of the complainant, had contracted marriage with Mst. Fazalan Mai (co‑accused) about 16/17 years prior to the occurrence and out of the wedlock three sons and a daughter was born. It is also stated in the F.I.R. that Abdullah and Mst. Fazalan Mai accused had been quarrelling with each other frequently. On 24‑12‑2000, the complainant received news that his brother Abdullah had died and was buried. After three days of his burial, the complainant received information that Allah Ditta, petitioner, had developed relations with Mst. Fazalan Mai, wife of Abdullah deceased. On inquiry Allah Ditta informed the complainant that Mst. Fazalan Mai, co‑accused, administered tablets containing intoxicant to the deceased and during his unconsciousness Muhammad Altaf, Muhammad Ramzan, Abdul Aziz and Rasool Bakhsh accused alongwith Mst. Fazalan Mai hanged the deceased with the girder. Resultantly Abdullah lost his life. After exhumation of the dead body post‑mortem examination was conducted. According to the post‑mortem report thyroid cartilage was broken into multiple pieces and the same was sent to the Bacteriologist. According to the opinion of the Doctor, the death was the result of Asphyxia most probably by the smothering or throttling. Samples of stomach and other matted material for detection of barbiturates were also sent to the Chemical Examiner. In the report of the Chemical Examiner, it was observed that no intoxicant or poison was administered to the deceased. Similarly no positive report about the administration of barbiturates was submitted.

3. The petitioner was arrested in this case on 23‑7‑2001 and the investigation of the case is still in progress. Challan has not been submitted before the Court, so far.

4. The learned counsel for the petitioner has argued that the sole incriminating evidence available against the petitioner was not reliable at all, as .it was recorded after delaying and was found to be false to the extent of Muhammad Altaf, Muhammad Ramzan, Abdul Aziz and Rasool Bakhsh, who were declared innocent by the police during investigation. He also argued that the alleged recovery of ordinary rope from the petitioner can hardly be used against the petitioner in the circumstances of the case.

5. On the other hand, that learned counsel appearing on behalf the complainant supported by the learned counsel for the State, has vehemently opposed the grant of bail to the petitioner and argued that the petitioner was duly nominated in the F.I.R; that the evidence of motive was available against the petitioner; that extra- judicial confession was reliable in the circumstances of the case and that there was no reason to involve the petitioner falsely in this case.

6. I have heard the learned counsel for the parties and gone through the record. I have also given my anxious thought to the facts and circumstances of the case. It has been noticed that the case of the prosecution hinges on the story of extra judicial confession alone. The occurrence took place on 24‑12‑2000 and according to the F.I.R. the complainant came to murder the occurrence but the matter was not reported to the police. Similarly the statements of Fazal Hussain and Ghulam Rasool were recorded on 20‑7‑2001 after a delay of seven months. According to their statements, the accused had confessed before them after three days of the occurrence. According to the story given by the P.Ws. relating to the confession of the petitioner, four co‑accused namely Muhammad Altaf, Muhammad Ramzan, Abdul Aziz and Rasool Bakhsh were also indulged in commission of offence, who were found to be innocent during investigation. Admittedly no complaint has been filed against the said declaration. Despite a lapse of eight months after registration of the case the Investigating Officer of the case has not completed the investigation so far. There is no likelihood of commencement of trial in near future. The veracity of the extra judicial confession would be determined by the trial Court after recording of the evidence. The story of administration of tablets containing intoxicant to the deceased was also found to be false, according to the report of the Chemical Examiner.

7. For what has been discussed above, am inclined to accept this petition and admit the petitioner to bail, subject to his tendering bail bonds in the sum of Rs. two lacs, with one surety in the like amount to the satisfaction of the trial Court. H.B.T./A‑458/L Bail granted.