2012 PLP 2663 (YLR)

NOOR-UL-HAQ N. QURESHI, J.

The bail application moved on behalf of petitioner, seeking post arrest bail in connection with F.I.R. bearing No.94 dated 25-3-2011, Police Station Sihala, Islamabad under sections 302, 109 & 34 P.P.C.

2. As per the facts narrated in the F.I.R. lodged by complainant Munir Ahmed S.-I., Police Station Sihala, Islamabad on behalf of State, on 25-3-2011, narrating therein the incident allegedly occurred on the same day at 7-00 a.m. Prosecution story narrated by the said S.I inter alia that he being A.S.-I. of Police Station Sihala proceeded on patrolling duty with Abdul Qudoos Constable in Government Mobile No.GF780 with driver Ishtiaq Ahmad. From 12 midnight to 8-00 am in the morning they were on duty. During patrolling at about 7-00 a.m. when they reached at G.T Road running towards Rawalpindi near opposite DHA Gate No.4, found dead bodies of two young boys lying on left side of the road. On their search, respective purses were recovered from their pockets, in which Afghani passport containing name Ali Haboot son of Said Jahan resident of Kabul and from another showing name Ali Raza son of Rajab Ali, resident of Kabul. Both appeared to have been killed by fire arm weapon and thereafter thrown on the side of road by some unknown accused person. Such F.I.R. registered whereafter during course of investigation, present accused was also arrested by them on the basis of statement of owner of hotel where allegedly both the deceased were residing in a room of hotel.

3. Learned counsel for the petitioner argued that P.W. Babar owner of hotel is the only person who disclosed the name of petitioner as he arranged the room for both the deceased and found leaving the hotel with them before their dead bodies were recovered.

4. He argued that allegedly a pistol was recovered from the possession of accused but the report in respect whereof obtained by the prosecution from the Forensic Science Laboratory, Punjab, Lahore in respect of recovery of that pistol is negative and empties found from the scene of incident are not matching with the pistol recovered from his possession. He also argued that besides the evidence referred above, there is no other iota of evidence collected against the accused and last seen with the accused person carries no evidentiary value. No perfect proof is available to connect the accused with the commission of offence and the incident being unwitnessed on the basis whereof accused cannot be involved nor there is any reasonable ground available to connect him with the commission of offence. So far as the concern of recoveries that too does not implicate him nor connects him with the offence. Therefore, it becomes the case of further inquiry into the guilt of accused. In support of his contentions, he relied upon case-law reported in 2000 PCr.LJ 842 (Karachi), 2000 PCr.LJ 1204 (Karachi), 2000 PCr.LJ 768 (Lahore), 2005 YLR 2418 (Peshawar), 2011 PCr.LJ 232 (Karachi), 2010 PCr.LJ 392 (Karachi) and 2009 PCr.LJ 1085 (Peshawar).

5. It is astonishing to note that counsel appearing for State mostly remained absent, therefore, matter was called twice but none appeared, however, Investigating Officer himself argued that beside above referred evidence there is other two pieces of evidence available against the accused one is the confessional statement of co-accused Habibullah who has given the name of accused. Moreover, the mold of foot prints were obtained on the very day when dead bodies were recovered from the scene of incident and same are matching with the shoes of the accused recovered from his possession as such strong circumstantial evidence available against him to connect him with the commission of offence.

6. I have gone through the record, police papers produced, authorities referred as well as arguments heard advanced by both the parties, heard.

7. From the record, it appeared that there is no eye-witness of the incident. Merely dead bodies of two deceased were available on the scene of incident after recovery thereof the A.S.-I. lodged F.I.R. at Police Station Sihala, Islamabad. During course of investigation, on examining P.W. Babar owner of Crown City Hotel where both the deceased were residing in room, allegedly the said Babar PW has pointed out two very important features, one, rooms hired for the deceased on the day when dead bodies were recovered, he found him proceeding out from the hotel with both the deceased, therefore, is a last seen with the deceased is only evidence collected.

8. Another piece of evidence by which the petitioner is going to be connected is a recovery of pistol which on examining through Forensic Science Laboratory having no significance or positive report to connect the accused with the commission of offence. The another very material evidence as disclosed by prosecution that the molds of shoes taken from the scene of incident are matching with the shoes of accused again leaving towards room of inquiry as there are so many shoes of the same company owned by many other persons, therefore, cannot be considered as conclusive proof to connect him with the commission of offence.

9. So far as the concern of last seen, that too is not a strong piece of evidence leading towards the conformity regarding involvement of the accused with the murder. The evidence lastly pointed out by the I.O. that statement of accused Habibullah was recorded under section 164, Cr.P.C. by which he confessed his guilt and by naming the present accused involved him as accomplice by inculpating himself.

10. I while going through the same found nothing available to suggest any incriminating part respecting commission of offence. Confessional statement by itself only showing the strange relation between deceased Ali Haboot and accused Habibullah which too cannot be considered as a piece of evidence could be adversely used against the accused. Throughout statement under section 164, Cr.P.C., no where accused Habibullah has slightly alleged that present accused committed offence conjointly with him. Therefore, such a piece of evidence is also not helpful for prosecution to connect him with the commission of offence. Moreover, case-law cited by learned counsel for the petitioner is sufficiently covering such aspect of last seen which cannot be treated as piece of evidence having much reliance. As such same can only be scrutinized at the stage of trial but nothing adverse available in it to form an adverse opinion against the accused.

11. The identification of molds which is a piece of evidence relied upon by the prosecution is also insufficient in view of above discussions as well as Article 22 of Qanun-e-Shahadat Order, 1984 which is to be established being relevant on such scale.

12. Likewise there is no direct evidence available on record as such the whole case in view of Article 71 of Qanun-e-Shahadat Order, 1984 requires oral evidence must be direct, is lacking in the instant case.

13. Therefore, I am of the view that case of present petitioner requires further probe into his guilt. In my humble view, he is entitled for grant of bail. Therefore, he is ordered to be enlarged on bail subject to furnishing surety in the sum of Rs.500,000 with PR bonds in the like amount to the satisfaction of trial Court.

14. The expeditious trial is the right of petitioner, therefore learned trial Court is directed to conclude the trial within a period of six months without being influenced with the observations made above, which are, tentative in nature. MWA/112/Isl Bail granted.