NAZAR HUSSAIN SHAH and another vs STATE

ORDER

Through this petition, Nazar Hussain Shah and Ghulam Ram Shah, petitioners, have sought post arrest bail in case F.I.R. No, 220/06 dated 12.9.2006, registered at Police Station Khanewal Kohna, District Khanewal, in respect of offences under Sections 302/34, P.P.C.

2. Shorn of un-necessary details, the facts of the case as narrated in the F.I.R.- registered at the instance of Bakhat Ali, complainant are that Qamar Abbas, Asad Abbas, Mehdi Hassan and Qamar Abbas son of Sajjad Hussain shot dead Tasawar Hussain on 12.9.2006. According to the complainant, offence of the murder was committed at the instance of the petitioners. As stated in the F.I.R. motivating factors behind the occurrence was murder of Murtaza Shah, real brother of the petitioners at the hands of Tasawar Hussain (deceased).

3. In support of this petition, learned counsel for the petitioners has contended that admittedly the petitioners did not participate in the actual occurrence and only allegation against them is that of hatching up a conspiracy as a result of which Tasawar Hussain was murdered by the four co- accused; that during the investigation, both the petitioners were found innocent and as a matter of fact, a report for their discharge from the case was also prepared and submitted which, however, was not accepted by the concerned Magistrate; that both the petitioners being old and infirm persons are entitled to bail under first proviso of Section 497, Cr.P.C. He adds that the case of the petitioner requires further inquiry.

4. Conversely, the learned counsel for the complainant has opposed this bail application tooth and nail. He has submitted that the petitioners who had strong motive for the commission of the murder of Tasawar Hussain (deceased), murderer of their brother, are specifically named in the F.I.R. He adds that the challan has been submitted and the case is ripe for framing of charge which has not been framed due to the delaying tactics of the accused. Regarding the evidence of conspiracy, he has submitted that on 11.9.2006, both the petitioners had advised their co-accused to murdering Tasawar Hussain in the presence of two witnesses namely Manzoor Hussain and Munawar Hussain, who had approached the petitioners for beseeching forgiveness to Munawar Hussain (P.W.) who was involved in a case registered under Section 324, P.P.C. He maintains that the statements of the witnesses of conspiracy are corroborated by the fact that as a result of said request; Mehdi Hassan accused had made a statement in favour of Munawar Hussain on the basis of which Munawar Hussain (PW of this case) was acquitted on 12.9.2006.

5. After hearing the arguments of both the parties, I have concluded that admittedly the petitioners are not accused of taking part in the murder of the deceased, physically. The only allegation against them is that of hatching of conspiracy of murder of the deceased. I have further gathered that no evidence regarding the offence of commission of conspiracy was mentioned in the F.I.R., itself. The statements of the above said witnesses of conspiracy were recorded after the registration of the exit. Assertion of the petitioners that said statements were recorded later on, cannot be out rightly rejected, at this stage. Be that as it may, the said witnesses, prima facie, cannot be termed as independent witnesses, as admittedly, they were also inimical towards the petitioners' party, inasmuch as, one of them namely Munawar Hussain was facing charge of attempted murder levelled by Mehdi Hassan, co-accused. Though, he was acquitted on the basis of the compromise, but that itself does not mean that the rancour developed between the parties had evaporated in the air just in a few days. Besides that allegation of causing instigation by the petitioners openly and in presence of their enemies, prima facie, is not appealing to the reasons.

6. To deprive a person of his freedom is a most serious issue. It is settled law that benefit of doubt can be extended to the accused even at bail stage. In cases, based upon the allegation of conspiracy, normally bail is granted. Reliance in this regard is placed upon the case of Syed Aman Ullah Shah v. The State and another (PLD 1996 S.C. 241), Riaz Hussain v. The State (2004 Y.L.R. 3067) and Allama Syed Sajid Naqvi v. The State (PLD 2004 Lahore 549).

7. Besides that, after through investigation, the story of hatching on conspiracy put forward by the prosecution, was not believed and both, the petitioners were found innocent. As a matter of fact, a report for their discharge was also submitted, though, the same was not acceded to. It is true that ipse dixit of the police is not binding upon the Courts, but for the purposes of bail, the same can be considered by the Courts. In a case of Muhammad Sadiq v. Sadiq and others (PLD 1985 S.C. 182), apex Court of the country held, that if the accused is declared innocent by the police, then he becomes entitled to bail as a matter of right. Similarly view was taken by the Hon'ble Supreme Court in a case of Ibrahim v. Hayat Gull (1985 S.C.M.R. 382). In this regard, further reliance is placed upon the case of Dr. Muhammad Aslam v. The State (1983 S.C.M.R. 2288). As in the present case, the police have found the petitioners innocent, the petitioners have become entitled to bail as a matter of right, on this score also.

8. There is yet another reason for granting bail to the accused as admittedly, both the petitioners are fairly aged person. In the police record, the age of Nazar Hussain petitioner had been recorded as 68/69 years, while the age of Ghulam Raza petitioner was recorded as 63/64 years. The claim of ailment of Nazar Hussain petitioner cannot be out-rightly rejected in the presence of a medical prescription issued by a Heart Specialist on 9.9.2005 i,e, much prior to the occurrence. The factor of old age coupled with the fact that the petitioners had not physically participated in the occurrence can be taken into consideration especially when it appears that the net prima facie, has been thrown much wide. Two of the main accused are sons of Nazar Hussain petitioner, while other two are his nephews. Ghulam Raia Shah petitioner is real uncle of all the main accused. Question as to whether the petitioners committed the offence of conspiracy, would be requiring further inquiry. As far as, question of applicability of the first proviso of Section 497 Cr.P.C. is concerned, reliance is placed upon the cases of Abdul Jabbar and another v. The State (1977 S.C.M.R. 50), Khanu ,etc. v.

The State.(1980 P.Cr. LJ 316) and Fayaz Ghani and 2 others v. The State (1983 P.Cr. L.J. 781).

9. For all the reasons mentioned above, both the petitioners are found to be entitled to bail.

Resultantly, their application is hereby accepted and they are admitted to post arrest bail subject to their furnishing bail bonds in the sum of Rs, 2,00,000/- (two lac) each with one surety each in the like amount to the satisfaction of the learned trial Court.

10.Before parting with the order, it is observed that the findings recorded in this order would not prejudice the trial in any manner.