2008 PLP 223 (MLD)

HASNAT AHMAD KHAN, J.

Petitioner seeks post-arrest bail in case F.I.R. No. 76 of 2006, dated 27-3-2006 registered at Police Station Kot Mithan, District Rajanpur, in respect of offences under section 302/34, P.P.C.

2. Succinctly, the facts, as unfurled in the F.I.R., that on 26-3-2006 the complainant and his sons namely Manzoor Hussain and Jan Muhammad were present at their Dera; that at about 9-00 p.m. Nehal came there and upon his (complaint) query the said Nehal told that he had come in search of his missing goat; that after taking meal, at about 9-00 p.m. Nehal took his son Manzoor Hussain (deceased) along with him for search of his (Nehels') goat. On 27-3-2007 after having been informed about the cropse discovery of his son Manzoor Hussain, the complainant along with his son Jan Muhammad and brother Hazoor Bakhsh reached Mauza Rakh Dama and identified the said dead body as that of Manzoor Hussain (deceased); that the complainant found sharp-edged injuries on the left side of neck and backside of head of the (deceased). According to the complaint, Nehal, co-accused, with the help of his companions, had done Manzoor Hussain to death on account of suspicion of illicit relations of Manzoor Hussain (deceased) with one of women of Nehal's family.

3. Petitioner approached the learned Sessions Judge Rajanpur for grant of his post-arrest bail but his application was dismissed vide order, dated 6-8-2007. Hence this petition for grant of post-arrest bail.

4. In support of this petition, learned counsel for the petitioner has contended that the petitioner was not named in the F.I.R; that there is no eye-witness of the occurrence; that the petitioner was implicated in this case on the basis of affidavits submitted by Hazoor Bakhsh and Jan Muhammad which too, admittedly, were submitted before the police after 53 days of the occurrence; that no recovery has been effected from the petitioner; that the petitioner has been involved in this case as he happens to be brother of Nehal (co-accused) and that the petitioner is languishing in jail for about one and a half year.

5. Conversely, the learned DPG, assisted by learned counsel for the complainant, has opposed the bail application on the ground that the petitioner has been implicated in this case on the basis of the statements/affidavits of Hazoor Bakhsh and Jan Muhammad; that the petitioner confessed his guilt before police; that the offence falls within the prohibitory', clause of section 497, Cr.P.C.

6. After ardently hearing the arguments put forth by both the sides I have straightaway noticed that it was an unseen occurrence. I have further gathered that the petitioner was not named in the F.I.R., According to the F.I.R. accusing finger was pointed out towards Nehal for the murder of Manzoor Hussain deceased and that too on the basis of circumstantial evidence. The petitioner was firstly involved in this case on the basis of a supplementary statement of the complainant which was recorded after twelve days of the occurrence. According to said supplementary statement the occurrence was seen by two witnesses namely Allah Wasaya and Farid Bukhsh but said witnesses did not come forward for recording their statements before police under section 161, Cr.P.C. to implicate the petitioners as culprits of the murder. However, they submitted their affidavits after 53-days of the occurrence whereafter their statements were recorded under section 161, Cr.P.C., according to which they had only claimed to have seen the commission of murder of Manzoor Hussain by the petitioner along with his father Allah Bakhsh and brother Nehal. According to said statements neither the manner of occurrence was stated nor specific role was attributed to the accused. Apart from the said statements other alleged piece of incriminating evidence is recovery of blood-stained hatchet which was -allegedly recovered on the pointing out of the petitioner on 24-7-2006 i.e. after about three months of the occurrence but, interestingly enough, the said hatchet was shown to be blood-stained. One would take the said recovery with a pinch of salt. Consequently, I have concluded that a case of further inquiry into the guilt of the petitioner within the meaning of section 497(2), Cr.P.C. has been made out, to say the least. After making out a case of further inquiry the petitioner has become entitled to bail as a matter of right. The said right cannot be snatched from the petitioner on the basis of rule of propriety which demands that after start of trial bail should normally be refused. Reliance in this regard is placed upon the cases of Muhammad Ismaeel v. Muhammad Rafiq and another (PLD 1989 SC 585), Muhammad Umar v. The State and another (PLD 2004 SC 477), Munir v. State (2002 MLD 712) and Muhammad Saleem v. The State (PLD 1989 Lahore 233). Consequently, the application in hand is accepted and the petitioner is admitted to post-arrest bail subject to his furnishing bail bonds in the sum of Rs.2,00,000 (rupees two lac) with one surety in the like amount to the satisfaction of the learned trial Court. N.H.Q./M-544/L Bail allowed.