INAM ULLAH vs THE STATE and 2 others

' MUHAMMAD ALAM KHAN, J.---Inamullah Khan, accused/ petitioner, charged in case F.I.R. No.59, dated 28-4-2007 under sections 302/34, P.P.C. Of Police Station Ghazni Khel, Tehsil and District Lakki Marwat, having been refused bail by the learned Judicial Magistrate Ist Class and learned Sessions Judge Lakki Marwat vide orders, dated 22-1-2008 and 4-3-2008 respectively, has filed the instant application for the same relief.

2. The prosecution story as narrated by the complainant Mst. Khatam Bibi in her initial report is that on the fateful time at 'Sham Qaza Vela', she along with her son Anwar Saddat was going from the house of her father to their house. Anwar Saddat was going ahead of her who after crossing the Baithock of Akbar Khan Ghazni Khel disappeared in the street, whereafter she went to her house for his search but at 10'00 clock came to know that her said son was lying murdered on the Kacha road leading from Khairo Khel to Kotka Muhammad Nawaz, Tariq son of Master Sher Afzal and Inam son of Akbar were charged for committing the murder of the deceased Anwar Saddat but without any motive.

3. It was vehemently argued by the learned counsel for the petitioner that the learned lower Courts have failed to appreciate the factual and legal aspects of the case as no specific role has been assigned to the accused/petitioner in the first report by the complainant. He urged that the co- accused Tariq attributed identical role has already been admitted to bail by this Court and under, the rule of consistency, the accused/petitioner deserves to be treated equally. It was next contended that the second story of the complainant was introduced after lapse of sufficient time when investigation in the case was complete where the accused/petitioner was found innocent by the Investigating Agency and, therefore, it carries no evidentiary value. It was argued that the occurrence is of night not witnessed by anyone and the accused/petitioner was charged on suspicion. Lastly he submitted that no effective role has been attributed to the petitioner and that the plea of the complainant with regard to the involvement of the accused/petitioner in numerous criminal cases is of no help to the prosecution in the instant case.

4. On the other hand, learned counsel representing the complainant and the learned Deputy Advocate-General appearing for State have seriously opposed the grant of bail to the petitioner. It was argued that the accused/petitioner has remained fugitive from law in different criminal cases and that his case is totally on different footings from that of his co-accused released on bail and thus the principle of consistency is not attracted. They urged that though the occurrence is of night but the medical evidence supports the prosecution version besides the circumstantial and ocular account and, therefore, the petitioner is reasonably linked with the commission of the crime.

Reliance was placed on the case of Tariq Bashir and 5 others v. The State (PLD 1995 Supreme Court 34).

5. I have gone through the record and considered the arguments of the learned counsel for the parties.

6. Admittedly, the occurrence has taken place at night neither seen by the eye-witnesses nor even by the complainant. In her application to the learned Sessions Judge Lakki in his capacity as Justice of Peace moved under section 22-A, Cr.P.C. For directing the S.H.O. Of Police Station Ghazni Khel to registei the case according to her narration as the present F.I.R. Was termed to be concocted with the connivance of the accused/petitioner and his co-accused Tariq, she has taken totally a different stand about the occurrence than the one alleged in her first report. No motive has been assigned to him. The plea of the complainant that the accused/petitioner is involved in different criminal cases and remained fugitive from law could not be made basis for refusal of bail to him. Muhammad Tariq, co-accused of the petitioner attributed identical role has already been released on bail by this Court and, therefore, the principle of consistency is also attracted in his case. From the facts and circumstances of the case, prima facie, the petitioner is not reasonably linked with the commission of the instant offence. Therefore, following the dictum laid down in the judgments reported as Abdul Salam v. The State (1980 SCM R 142) and Muhammad Afzal alias Bodi v. The State (1979 SCM R 9), and tentative assessm ent of the materials so far brought on record, prima facie, the case of the petitioner is held to be of further inquiry entitling him to the concession of bail.

Resultantly, this application is accepted and the accused/ petitioner is admitted to bail subject to his furnishing bail bond in the sum of Rs. Two lacs with two sureties in the like amount each to the satisfaction of Illaqa/Judicial Magistrate, who shall see that the sureties are local, reliable and men of means.

' Above are the reasons for my short order of even date.