2009 PLP 184 (MLD)

SYED MUSADIQ HUSSAIN GILLANI, J.

Petitioner Israr Jamshed alias Jamshed, is arrested, in case F.I.R. No. 255, dated 12-4-2008, under section 30 2/364, P.P.C. of Police Station Paharipura, Peshawar, and after refusal of bail by the Courts below, he moved the instant bail petition to this Court.

2. The report of instant case was initially made by Umar Rahman, complainant, on 17-12-2007 at 1825 hours, regarding disappearance of his son Ali Rehman, who was missing since 29-11-2007, against un known persons, which was recorded, vide Daily Diary No.8, dated 17-12-2007. However, he disclosed that Ali Rehman was charged in an abduction case along with Qudrat Shah and Jamshed etc., and he was arrested, and released on bail after four months, but the said case is still pending in the Anti-Terrorism Court, and that Ali Rehman used to live with the said persons.

3. However, during the enquiry under section 156(3), Cr.P.C. supplementary statement, of complainant was recorded on 10-4-2008, followed by statement under section 164, Cr.P.C. in which he charged the petitioner and his co-accused, after due satisfaction. On the pointation of complainant, a suspected grave was dug out in the presence of Magistrate, but found empty.

4. Learned counsel for the petitioner argued that there is no direct, or last seen evidence against the petitioner, and section 302, P.P.C. is not applicable, because the dead body has not been recovered so far. Regarding evidentiary value of supplementary statement and statement under section 164, Cr.P.C., he relied on SCMR 2003 1419, SCMR 2001-14(B), PCr.LJ 2008 129, YLR 2007 1576, PCr.LJ 2004 143 and 2007 PCr.LJ 1064. Similarly, on the delay in lodging the report, and no direct evidence, reliance was placed on MLD 2007 1460, PCr.LJ 1579 and 1996 SCMR 1485. Learned counsel for the petitioner also relied on case-law reported as 1990 PCr.LJ 1541 and 2008 YLR 1134. In the former case, due to non-recovery of dead body, bail was allowed while in the latter case in similar circumstances, accused was acquitted.

5. On the other hand, learned counsel for the complainant argued that merits of the case were touched deeply, by his opponent whereas he was required to assess the evidence tentatively. There was no delay in lodging the report and prompt report of the complainant was recorded, vide daily diary. The motive was also mentioned in the said report and the petitioner was arrested when he was corning to the complainant for receipt of Rs.80,000, for handing over dead body of Ali Rehman to him. On the evidentiary value and delay in lodging the F.I.R., the learned counsel relied on PLD 1997 SC 545(F), 2005 PCr.LJ 43 and 1995 SCMR 1765. Learned counsel for the State argued that there was no motive for false charge, and the petitioner was entitled to bail.

6. Be that as it may, the dead body of Ali Rehman has not been recovered so far indeed, the petitioner is directly charged, but there is no direct or last seen evidence against him. He made no confession, and the case is prima facie of further enquiry. The alleged demand of money, for the recovery of dead body, is yet to be proved at the time of trial. Thus, keeping in view the peculiar circumstances of the case, petitioner is entitled to bail. He be released on bail subject to the furnishing of bail bonds in the sum of Rs. one lac, with two sureties, each in the like amount; to the satisfaction of the Illaqa/Judicial Magistrate/MOD. H.B.T./ 174/P Bail granted.