2004 P Cr (PLP)

S. 498

Penal Code (XLV of 1860), Ss.302/148/149

Presarrest bail, grant of--Accused had been regularly joining investigation, but police failed to recover any incriminating weapon from them

None from the locality of occurrence ever put up appearance before Investigating Agency to depose against accused

Such circumstances had cast doubt upon genuineness of the theory propounded by police

Mere fact that an eye-witness whose name was mentioned in FA.R. had gone hostile, would in no way indicate criminality of accused

Case of further probe into allegations against accused having been made out, pre-arrest bail was granted to him. Arif Chaudhary for Petitioners. Najeeb Faisal Chaudhary, Addl. Advocate-General and Rizwan Afzal for the State. Date of hearing: 13th October, 2003 Atta Ullah and Islam-petitioners seek their pre-arrest bail in Crime Report No. 133, dated 11-4-2003, under sections 148, 302, 149, P.P.C. registered with Police Station, City Pattoki, District Kasur at the behest of Atta Ullah petitioner No.1 himself. Earlier their application for the said relief was dismissed by a learned Additional Sessions Judge At Patloki through his order, dated 5-9-2003 on the basis of multiple reasons contained therein.

2. Learned counsel for the petitioner contends that during odd hours of night, Mst. Rehana Kausar, daughter of Atta Ullah petitioner was allegedly murdered by Muhammad Yousuf, Shahab Din, Ibrahim and three unknown persons. Regarding said murder incident Crime Report No.133, dated 11-4-2003, under sections 148, 302, 149, P.P.C. was lodged on the same night at 2-00 a.m. Muhammad Ismail S.I. of Police Station, City Pattoki, District Kasur took over the uphill task of investigation. Muhammad Yousuf, Shahab Din and Ibrahim were taken into custody by him and after few days, were sent home. Atta Ullah petitioner instituted a writ petition seeking direction against the police to arrest Muhammad Yousuf and others as killers of Mst. Rehana Kausar. Accordingly, a direction was issued to the petitioner to prefer his application before District Police Officer concerned, which was complied with by him. Thereafter, another writ petition was filed by Atta Ullah petitioner in which it was alleged that Muhammad Ismail S.-I. was compelling Atta' Ullah petitioner to effect a compromise with the accused, whose names figure in the F.I.R. S.H.O., Police Station, City accused, and Muhammad Ismail, S.-I. were directed to confine themselves within the four corners of law. Thereafter, Atta Ullah petitioner approached learned Judicial Magistrate, seeking issuance of .a direction to the police to submit challan against Muhammad Yousuf and others, but it was not so done. Atta Ullah petitioner knocked at the door of D.I:.-G. , requesting him to withdraw investigation from Muhammad Ismail S..-I./Investigating Officer and entrust the same to some independent impartial Investigating Officer. As the matter was still hanging tire, so he approached District Police Officer, Kasur. He next argues that Muhammad Ismail, S.-I. and S.H.O. Police Station, City Pattoki did not move a bit by the story of his sufferings and instead of challaning Muhammad Yousuf and others, challaned Atta Ullah, his son Kamran and Islam son of maternal uncle of Atta Ulah. He ends his arguments, with the submission that Muhammad Ismail, S.-I. acted in vacuum in a mala fide manner and put up challan against them for the alleged mactation of Mst. Rehana Kausar. According to him, a case of further inquiry is made out.

3. Learned counsel for the State after perusal of investigation record submits that the accused were found guilty and have been proceeded against under section 512, Cr.P.C.

4. Learned Law Officer was called upon to assist this Court. After careful perusal of the record, he submits that Muhammad Ismail S.-I. recorded statements under section 161, Cr.P.C. of Saleem Akhtar and Ahmad Ali on 29-6-2003 after about two and a half months of the occurrence. They are not residents of Rehman Town, Bakar Mandi, where the event had happened in the very dwelling house of Atta Ullah petitioner. Muhammad Ismail S.-I. also admits that Saleem Akhtar and Ahmad Ali were not present in the vicinity of occurrence on the fateful night.

5. Both the sides have been heard at length. A father is considered to be the best protector of his children. It is not believable that he alongwith his son and son of his maternal uncle would kill his own daughter, without there being any special cause or reason. As regards evidence collected by the Investigating Officer, during course of investigation, only statements of Saleem Akhtar and Ahmad Ali aforementioned recorded under section 161, Cr.P.C. on 29-6-2003 are on the file. Recording of their statements at such a belated stage is open to serious doubts. Why these P.Ws. kept mum over it, is not known. This conduct of theirs is likely to annihilate the value and worth of their statements. It is settled law that if a person after acquiring full knowledge of an incident keeps mum then he is to be considered as a privy to the crime. This conduct of the witnesses is by itself criminal. Petitioners have been regularly joining investigation, but police failed to recover any incriminating weapon from them. None from the locality of occurrence ever put up appearance before the Investigating Agency to depose against- the petitioners. Had there been any reality in the allegations brought against them, then someone from that locality should have furnished voucher against the petitioners: This circumstance also throws a cloud of doubt upon genuineness of the theory propounded by the police. The mere f4ct that an eye-witness whose name is mentioned in the F.I.R. has gone hostile would in no way indicate criminality of the accused/petitioners. Saleem Akhtar and Ahmad Ali are in no way related to the petitioners or to the deceased. In my-opinion a case of further probe into allegations is made out.

6. Accordingly, I accept this application and admit the petitioners to pre-arrest bail subject to their furnishing bail bonds in the sum of Rs.50,000. (Rupees fifty thousand) each with two sureties each in the like amount to the satisfaction of trial Court. H.B.T./A-1013/L Pre-arrest bail granted.