IMTIAZ vs THE STATE

ORDER

' HASNAT AHMAD KHAN, J.--- Through this application Imtiaz-petitioner has sought post-arrest bail in case F.I.R. No,43 of 2008 dated 4-3-2008 registered at Police Station Bharwana, District Jhang, in respect of the offences under sections 302/109/148/149 and 324, P.P.C.

2. Shorn of unnecessary details, the prosecution story as per the F.I.R. Lodged at the instance of Imtiaz Ahmad-complainant, is that the petitioner along with three unknown and two known co- accused emerged from an adjoining out house/Dera and turned up at the scene of occurrence situated in Village Kalri on 3-3-2006 at 11-00 p.m. And on bawling out by Fayyaz co-accused.

Amjad fired a shot from his pistol hitting in the belly of Azam (deceased) who fell on the cot.

Thereafter he was shot at by Yousaf co-accused also hitting in the belly of Azam (deceased). The complainant further alleged that Imtiaz-petitioner and Fayyaz co-accused attempted to remove Azam (deceased) from his room in injured condition. According to the complainant the said occurrence was witnessed by Amjad Ali and Wajid Ali besides the complainant himself. The complainant went on to allege that after fleeing from the place of occurrence, the accused party shot at a women belonging to their party to give it a colour of honour killing.

3. In support of this application learned counsel for the petitioner has contended that admittedly the petitioner did not cause any injury to Azam (deceased) that during the investigation the plea of alibi raised by the petitioner was accepted and it was opined by the Investigating Officer that he (petitioner) was not present at the time and place of occurrence; that in fact it is a case of counter-version inasmuch as during the investigation Mst. Sattan Bibi, mother of petitioner's wife complained the abduction of her daughter namely Shahida at the hands of Azam (deceased) along with his co-accused. After abducting her she was raped by Azam (deceased) and his co- accused on the night of occurrence, said Sattan; that to save the honour of said Shahida, her father, mother and brother searched for the accused, who were found in Azam's outhouse; that in the process of retrieving said Shahida, Azam (deceased) lost his life, whereas said Shahida also received fire-arm injuries; that in these circumstances a case of further inquiry is made out in favour of the petitioner and that the petitioner has been languishing in jail since 13-3-2008.

4. Conversely learned counsel appearing on behalf of the complainant has opposed the bail application tooth and nail by submitting that the petitioner is specifically named in the F.I.R. With an allegation of actively participating in the occurrence that the petitioner is vicariously liable for the murder of Azam (deceased) and that the opinion of the police being not binding on the Courts the same cannot furnish a ground for bail to the petitioner that the plea of alibi raised by the petitioner cannot be considered at the bail stage. In this regard he has placed reliance on the case of Muhammad Mansha v. The State PLD 1996 SC 229. He adds that during the investigation the counter-version recorded at the instance of Mst. Sattan Bibi has been found false. He further maintains that being dissatisfied with the opinion of the police the complainant has already filed a complaint.

5. Learned Deputy Prosecutor-General has adopted the arguments put forth by the learned counsel for the complainant.

6. After giving an ardent hearing to the respective learned counsel for the parties I have gathered that admittedly the occurrence took place in the dark hours of the night. I have further gathered that during the investigation petitioner's mother-in-law got her counter-version recorded claiming therein that on the night of occurrence petitioner's wife Shahida was abducted by Azam (deceased) who carted her off to his outhouse where she was allegedly raped. She further alleged that in order to save her daughter's honour she along with male members of her family chased the accused and found him in his outhouse/Dera along with aforesaid Shahida. According to her in the process of retrieving her, Azam (deceased) received fire-arm injury and bled to death. However, during the investigation the cross-version was cancelled nevertheless, it was opined by the Investigating Officer that said Shahida had extramarital relations with Azam (deceased) and in order to have sex with him she had gone to his outhouse (Dera) where he (Azam) was gunned down by Shahida's brother namely Amjad. The investigator further opined that in the said process said Shahida as well as her father Yousaf, co-accused of the petitioner also received bullet wounds. It was further observed by the Investigating Officer that the petitioner was not present at the time of occurrence. Opinion of the police no doubt can be taken into consideration while deciding bail application. Moreover, the police file contains the medico-legal certificate which shows that Shahida Bibi was medically examined on 4-3-2008 i.e. The date of lodging of F.I.R. In this case. According to the medico-legal certificate the duration of injuries suffered by Mst. Shahida Bibi synchronizes with the time of murder of Azam (deceased). The contents of the F.I.R. Also indicate that according to the complainant as well, some woman was shot injured on the same night by the accused party. In these circumstances without giving any observation on the merits of the case lest it may prejudice the case of either of the parties suffice it to observe that it is yet to be determined as to which of the two versions is correct. In this backdrop a case of further inquiry within the purview of section 497(2), Cr.P.C. Has been made out in favour of the petitioner to say the least.

7. Consequently, I am inclined to grant concession of post-arrest bail to the petitioner but of course subject to his furnishing bail bonds in the sum of Rs,1,00,000 (Rupees one hundred thousand) with two sureties in the like amount to the satisfaction of the learned trial Court.