2009 PLP 2311 (YLR)

HABIB ULLAH SHAKIR, J.--Through the instant petition, Muhammad Ilyas, petitioner seeks post-arrest bail in case F.I.R. No. 116 dated 11-5-2008 registered under section 302/34 of the C.P.C. at Police Station Saddar, Rahim Yar Khan.

2. According to the contents of the F.I.R, Muhammad Yasin, complainant, a resident of Industrial Area Korangi Karachi, had married his son Rafaqat Ali with Mst. Faiza daughter of Muhammad Ramzan, a resident of Bilal Colony, Karachi about two years prior to the lodging of the F.I.R. Six months before one Nadeem son of Abdul Ghani, in furtherance of his illicit relations with Mst. Faiza (daughter-in-law of the complainant) enticed and took away her to Rahim Yar Khan. In this regard a case F.I.R. No. 912/2007 was got registered by Rafaqat Ali son of the complainant under section 496-A of the P.P.C. at Police Station Korangi, No.4. On 5-5-2008 Mushtaq Masih and Manzoor Masih came to the complainant. Manzoor Masih, who was acquainted with the complainant as they had been working together in the Mills, told him that he had settled the matter with Nadeem regarding return of Mst. Faiza. He asked the complainant to send Rafaqat Ali with him and promised to return Mst. Faiza with him. So, the complainant sent his son Rafaqat Ali to Rahim Yar Khan along with them in the presence of Ghulam Mustafa and Haji Muhammad Nazir. The complainant remained in contact with his son. However, on 8-5-2008 after 7-00 p.m. his contact discontinued with his son and Manzoor Masih. The complainant got worried and proceeded for Rahim Yar Khan in the company of Munir Ahmad and Ashfaq Ahmad. When they reached the dera of their relatives Muhammad Rashid Ali and Shaukat in Chak No. 142/P Manthar Bungalow, Muhammad Arif, Muhammad Rashid Ali and Shaukat Ali were present there. The complainant inquired from them about his son, who told him that on 9-5-2008 at "Maghrib Wela", they had seen Rafaqat Ali in the company of Sajid Masih, Mushtaq Masih, Ilyas alias Goga Masih, Manzoor Masih, Mubarak alias Makhan Masih, Nadeem and Mst. Faiza while going towards Saim Nala leading to Chak No. 88/P, who on query, told them that they were going to say good bye" to Rafaqat Ali and Mst. Faiza as compromise had been effected between them. The complainant immediately contacted his wife at Karachi on cell phone, who told him that Rafaqat Ali had not reached home. Whereupon the complainant and the witnesses continued searching his son and when reached near the garden of Ch. Khurshid Ahmad in the area of Chak No. 88/P, some people told them that they had seen a dead body in the garden. When the dead body was seen the same was identified by the complainant and the witnesses to be that of Rafaqat Ali.

3. The learned counsel for the petitioner contends that the petitioner is innocent; that there is delay of two days in lodging the F.I.R. that there is no direct evidence against the petitioner regarding murder of Rafaqat Ali; that there is joint allegation against the petitioner and his co-accused; that nothing incriminating has been recovered from the petitioner, that the motive is attributed to co-accused Nadeem, who has been declared innocent during the course of investigation; that the petitioner was arrested on 22-5-2008 and is in jail since then and that he is no more required by the police for further investigation.

4. On the other hand, learned Deputy Prosecutor-General: opposed the grant of bail to the petitioner on the grounds that the petitioner is nominated in the F.I.R; that last seen evidence is available on the record to connect the petitioner with the commission of offence; that the petitioner has committed a heinous offence which falls within the prohibitory clause of section 497; Cr.P.C. Therefore, he is not entitled for grant of bail.

5. I have heard the arguments of the learned counsel for the parties and, have gone through the record. It has been noticed that there is no direct evidence of murder of Rafaqat Ali against the petitioner, that the allegation is joint and the only evidence available on record against the petitioner is of last seen. It has also been noticed that the dead body of Rafaqat Ali deceased was found in a garden. The same was neither recovered from the possession of the petitioner nor on the pointation of the petitioner. It has also been noticed that the motive is alleged against co-accused Nadeem who has been found innocent during the course of investigation by the Inspector/S.H.O. vide Zimini No. 8 dated 22-5-2008 duly endorsed/verified by D.S.P./SDPO Saddar Circle vide Zimini No. 8-A of the same date. Viewed in the light of the above facts, the case against the petitioner, prima facie, appears to be one of further inquiry. Bail cannot be refused merely on the ground that the offence falls within the prohibitory clause of section 497, Cr.P.C. The petitioner is in jail since 22-5-208 and is no more required by the police for further investigation. Although the challan has been submitted in the Court yet there is no likelihood of early conclusion of the same. The bail cannot be withheld as a punishment. Therefore, the petitioner is admitted to bail provided the furnishes bail bond in the sum of Rs.1,00,000 (One hundred thousand rupees) with two sureties each in he like amount to the satisfaction of the learned trial Court. H.B.T./M-561/L Bail granted.