2001 PLP 2076 (YLR)

(c) Criminal Procedure Code (V of 1898)‑‑‑ ‑‑‑‑S. 497‑‑‑Grant of bail‑‑‑Bail could not be withheld as a punishment. S.M. Rashid for Petitioner. Ch. Nazir Ahmad for the State. Date of hearing: 23rd July, 2001. Through this petition the petitioner seeks bail after arrest in case F.I.R. No.337 of 2000 registered on 27‑9‑2000 under section 302/34, P.P.C. at Police Station B‑Division Gujrat on the statement of Sabir Hussain Shah for an occurrence which took place on the same day at 7‑30 p.m.

2. The brief facts of the case are that the complainant Sabir Hussain Shah is the real brother of Safdar Hussain Shah. Safdar Hussain Shah was married with the daughter of the petitioner namely Quratul Ain and a dead infant was born. According to the complainant on the date of occurrence at evening time Tassadaq Hussain and Munawar Shah had come to the shop of Safdar Hussain Shah for condolence. Abid Hussain Shah the other brother also came there. Safdar Shah asked them to accompany him to his in‑laws for condolence. When Safdar Hussain Shah knocked the door of the room, and the door was opened, Akhtar Zaman petitioner alongwith another person while armed with Mauzer emerged and from the first floor of the house through the window Mst. Rukhsana wife of the petitioner and Quratul Ain daughter of the petitioner raised a Lalkara to kill Safdar Hussain Shah on which Akhtar Zaman petitioner fired on Safdar Hussain Shah hitting him on the back of his head. The unknown person continued firing in the air. The motive is alleged about a dispute on minor issues between the spouses and in laws with Safdar Hussain Shah, that he should permanently settle with them.

3. Learned counsel for the petitioner has contended that there were cordial relations between the petitioner's family and Safdar Hussain Shah deceased and Safdar Hussain Shah and the petitioner was going towards their house when all of a sudden an unknown person fired at Safdar Hussain Shah. The petitioner took him to the hospital where the doctor found him that he has died and handed over to the petitioner a Rado Watch and two finger rings and Rs.200. This fact is a conclusive proof that at the time of admission of Safdar Hussain Shah deceased in the hospital the petitioner was present and he had taken him to the hospital, and 'no other witness was present at the spot at the time of occurrence. He further contends that in the successive investigations the petitioner has been found innocent and the police recommended for his discharge but the Ilaqa Magistrate did not agree with the police report and directed the police to submit the challan. He further contends that the case of the petitioner is of further inquiry and he is entitled to bail after arrest.

4. Learned State counsel has opposed the bail application and has contended that it is a prompt F.I.R. Specific role has been ascribed to the petitioner. The occurrence has taken place in front of the house of the petitioner. Deeper appreciation of evidence is not allowed at bail stage. The challan has been submitted in the Court.

5. I have heard the learned counsel for the parties and also perused the record. Admittedly the occurrence took place in front of the house of the petitioner and the factum that the doctor handed over the last worn Rado Watch, two finger rings and other articles belonging to the deceased when he was admitted in the hospital to the petitioner prima facie, supports the version of the petitioner that he had taken the deceased to the hospital and no witness was present. Even otherwise the witnesses are not the residents of the locality and their presence at the spot at the time of occurrence is doubtful. In the successive investigations the three D.S.Ps., E D.S.P. Headquarters, D.S.P. C.I.A. and D.S.P. City 'have found the version of the petitioner to be correct that he had not fired at the deceased. All the three Investigating Officers consistently have found the petitioner as innocent and has recommended for his discharge. The discharge report was prepared by the police and it was submitted before the Ilaqa Magistrate but he instead of concurring with the same has directed the submission of the challan. Due to the above‑said reasons find that the involvement of the petitioner in this case seems to be doubtful. Though the finding of the police is not binding on the Courts yet it can be considered for grant of bail. Bail cannot be withheld as a punishment as laid down in judgment reported as "PLD 1972 SC 81 ". The petitioner has made out a case for bail after arrest. Since discharge report was prepared by the police though the Ilaqa Magistrate has not concurred with the same but it cannot be ignored while deciding bail application. The case of the petitioner is of further inquiry and is covered by subsection (2) of section 497, Cr.P.C.

6. This petition is accepted and the petitioner is admitted to bail subject to his furnishing bail bonds in the sum of Rs.1,00,000 (Rupees one lac only) with two sureties each in the like amount to the satisfaction of the trial Court. H.B.T./A‑295/L Bail granted.