2013 PLP 282 (YLR)

MAZHAR IQBAL SIDHU, J.

Ali Husnain Butt (Ali Hussain Butt) petitioner seeks post-arrest bail in a case registered vide F.I.R. No.891 dated 24-9-2010 under sections 364 PPC at P.S. Ferozewala, Dist. Sheikhupura on the application of Tariq Ali.

2. According to prosecution's case in between night of 22/23-9-2010 at about 2-30 a.m., the deceased heard a telephonic call when he had abedded in his house and ultimately while hearing call, he came out of house and thereafter he was abducted by the petitioner along with his three unacquainted persons and this incident was seen by Abdul Sattar and Manzoor P.Ws.

3. During investigation, complainant made a supplemental statement dated 25-10-2010 and involved other persons namely Muhammad Imran, Yaseen and Muhammad Akram. Subsequently, the dead body of the deceased Mobarak Ali was found abandoned near vicinity of Rana Town and on its being recovered, offence under sections 302/34/109, P.P.C. were added to the F.I.R. During investigation, another piece of evidence was collected against the petitioner that he allegedly pointed out the place where the dead body was thrown and recovery of pistol has also been alleged against him.

4. Learned counsel for the petitioner contends that there is delay of about 24 hours in lodging the F.I.R.; no direct evidence of murder is available on the file; during investigation, father of the complainant and of the deceased namely Ghulam Haider filed an application under section 22-A & B Cr.P.C. in the court of learned Addl. Sessions Judge wherein in Paragraphs Nos.4 to 6, has repudiated the story mentioned in the F.I.R.; motive remains in suspicion. Further argued that Muhammad Imran co-accused of the petitioner has been granted bail and the case of the petitioner is at par with the said co-accused. Further submitted that prima facie material available on record justifies acceptance of instant petition on the basis of principle of further inquiry. Lastly, it has been submitted that mere commencement of trial is no ground to refuse bail save as a case for grant of bail is made out.

5. Learned DDPP after having gone through record has submitted that petitioner is nominated in the F.I.R.; the deceased was seen alive lastly in the company of the petitioner by the P.Ws. and subsequently during investigation sufficient material has been collected against petitioner besides recovery of weapon. Further submitted that after completion of investigation, his name has been placed in Column No.3 of the report under section 173, Cr.P.C. and now learned trial Court has indicted him and his co-accused, in this way, trial has commenced, therefore, he is not entitled for grant of bail especially when offence falls within the prohibitory clause of section 497, Cr.P.C. Further submitted that for a sufficient time petitioner remained P.O. and this piece of evidence smashes arguments of learned counsel for the petitioner, therefore, bail may be refused.

6. Hearkened and record perused.

7. Primarily case was lodged under section 364, P.P.C. against the petitioner and subsequently through supplementary statement co-accused as herein before mentioned were also involved. No direct evidence of murder of the deceased is available on record and the maximum evidence collected against the petitioner is that he allegedly pointed out place where the dead body was thrown and even dead body was not recovered on the pointing out of the petitioner. So far as recovery of weapon is concerned, it is not substantial piece of evidence. Prosecution has not collected any other evidence. The father of the deceased as well as complainant has also shown the complainant as addict and perjure. So far as commencement of trial is concerned, law is very much vivid that if case for grant of bail is made out, then commencement of trial by itself is no ground to refuse bail as envisaged by subsection (4) of section 497, Cr.P.C. It would not be transcendental to grant bail after the commencement of trial as this issue has already been settled through an ex cathedra judgment of the Hon'ble Supreme Court of Pakistan reported in PLD 1989 SC

585. Even at the time of disposal of bail application of the co-accused, this court has also relied upon case titled Mitho Pitafi v. The State (2009 SCMR 299) that "it is well settled principle of law that if an accused has good case for bail on merits and mere abscondence would not come in way while granting the bail".

8. For what has been discussed above, prima facie petitioner has made out a good case for grant of bail, therefore, instant petition is allowed and petitioner is admitted to post arrest bail subject to his furnishing bail bonds in the sum of Rs.2,00,000 (two lacs) with two sureties in the like amount to the satisfaction of learned trial Court.

9. It is markedly mentioned that observations made while deciding instant petition shall not cause any affect to the mind of learned trial Court at the time of final decision of the case. MWA/A-130/L Bail granted.