SHAH NAWAZ vs THE STATE

ORDER

' HABIB ULLAH SHAKIR, J.---This order is intended to dispose of the instant petition as well as Criminal Miscellaneous No, 378-B/2009/BWP, as both these petitions arise of the same F.I.R.

2. Shah Nawaz, Khair Muhammad, Bhagia alias Bhagoo (petitioners in the instant petition), Sabir Hussain and Sajid Hussain (petitioners in Criminal Miscellaneous No, 378-B of 2009/BWP) seek post-arrest bail in case F.I.R. No,152/2008, dated 2-9-2008, registered under sections 302/201/148/149 P.P.C, at Police Station Bhong Tehsil Sadiqabad, District Rahim Yar Khan.

3. Precisely facts as narrated in the F.I.R. Are that on 2-9-2008 Mahboob Ilahi/complainant along with Mukhtar Ahmad, Fiaz Ahmad and Niaz Ahmad was present in his house when one Shah Nawaz, an official of the Union Council, Jamaldinwali, visited them asking that. Mukthar Ahmad /deceased had been called by the Naib Nazim Muhammad Rahim Dargrocha at the residence of Makhdoom Sahib and took Mukhtar Ahmad with him. On not returning of Mukhtar Ahmad to his home, the complainant along with Fayyaz Ahmad and Niaz reached the said residence/Kothi and on reaching the gate of Kothi they heard noise of the first-shot and saw that Mukhtar Ahmad was wriggling after having hit the fire-shot. There was a rifle in the hand of said Muhammad Raheem Dargrocha. Khair Muhammad and Bhagoo the watchmen warned them not to come forward and run away and after a short while dead body of complainant's brother was thrown in the garden in front of the above mentioned gate. It is further alleged in the F.I.R. That Khair Muhammad, Bhagoo, Sabir Hussain and Sajjad Hussain had fastened Mukhtar Ahmad/deceased and Muhammad Rahim committed his murder having suspicion in his mind that the deceased facilitated in going of one Hassan Bakhsh Drigh's daughter with Akhtar Drigh.

4. It is contended by learned counsel for the petitioners that no overt act in commission of murder of Mukhtar Ahmad/ deceased has been attributed to petitioners except the petitioner No,1 took Mukhtar Ahmad with him to get him met with Muhammad Rahim Dargrocha/one of the co- accused. Further contends that there is no direct qua murder of Mukhtar Ahmad. Adds that the deceased suffered a single fire shot on his throat which injury has black margin, therefore, the same requires further probe as to whether it was homicidal fire shot or otherwise. As far as Khair Muhammad and Bhagoo are concerned they are alleged to have not allowed entering of the complainant in the gate of the Kothi. Further that post-mortem report does not corroborate the allegation that Mukhtar Ahmad/deceased had been tied by the present petitioners and their co- accused Sabir Hussain and Sajjad Hussain as no signs of ligature of fastening him were found on body of the deceased and prays that the petitioners are entitled to the grant of post-arrest bail.

5. Learned APG assisted by learned counsel for the complainant vehemently opposed the grant of bail to the petitioners on the grounds that they are nominated in the F.I.R. Shah Muhammad/petitioner No,1 took Mukhtar Ahmad/deceased with him to the place of occurrence and Khair Muhammad and Bhagia alias Bhagoo, petitioners Nos.2 and 3, respectively, being watchmen at the Gate of the Kothi did not allow the complainant and others to enter the place of occurrence rather forcibly made them to run away from there. It is further contended that if there was no wrong doing regarding Mukhtar Ahmad/ deceased in the Kothi, they would have not restricted the complainant and others outside the gate, which, prima facie, proves that they were in the knowledge of murder of Mukhtar Ahmad, therefore, neither of them deserves the concession of post-arrest bail.

6. Arguments heard. Record perused.

7. There is no cavil to say that the petitioners are nominated in the F.I.R. Yet this fact may not be brushed aside there is no direct evidence available on record regarding murder of Mukhtar Ahmad.

As per prosecution story in the F.I.R. The complainant and others heard a fire shot from outside the place of occurrence/Kothi, thereafter they saw the dead body of Mukhtar Ahmad lying in the garden in front of the Kothi. Though murder of a human being has been committed, yet I hardly seen A any reason, especially in the absence of any direct evidence to connect the petitioners with the alleged crime. Further, it is noteworthy that there is no mention of the fact that who brought the dead body in the garden outside the Kothi. None amongst the present petitioners has been attributed a specific role except Shah Nawaz/petitioner No,1, who being an employee of Union Council to comply with the orders of the Naib Nazim (his officer) went to take Mukhtar Ahmad from the house of the complainant. During the investigation Shah Nawaz and Khair Muhammad were found innocent and have been placed in Column No,2 in the report submitted under section 173, Cr.P.C. While Bhagia alias Bhagoo along with Muhammad Raheem Dargrocha was placed in Column No,3.

8. Whatever has been said above, makes the case against the petitioners one of further inquiry. It has also been held in Muhammad Ismail v. Muhammad Rafique and another (PLD 1989 SC 585), Niaz Ali v. The State and another (2003 YLR 163) and Muhammad Arif Hussain v. The State (1999 M LD 939) that if the case of further inquiry is made out, then the accused cannot be denied the right of bail. Bail cannot be refused merely on the ground that the offence falls within the prohibitory clause of section 497, Cr.P.C. Furthermore, the Court seized of the matter should consider whole case on data available on record and, of any doubt arose, benefit of same must be given to the accused. B Similarly, the Court while considering question of bail was not to keep in view only maximum sentenced of death or imprisonment for life provided under the law, but at bail stage, if reasonable ground appeared that the person was not guilty of offence with which he was being charged, such person by virtue of subsection (2) of section 497, Cr.P.C. Would be entitled to bail and prohibition contained in subsection (1) of section 497, Cr.P.C. Would not create a bar for grant of bail. Nothing has been recovered from the petitioners. They are in Jail since their arrest and their person is no more required by the police for further investigation. Although charge has been framed yet there is no likelihood C of early conclusion of the trial because the accused persons have submitted an application for submission of complete challan and the other under section 265-C,Cr.P.C. For supply of copies while the complainant, has also submitted an application for summoning Saleh Imran as accused, which are still pending adjudication. Therefore, this petition is C allowed and the petitioners are admitted to post-arrest bail subject to their furnishing bail bonds in the sum of Rs, 100,000 each with one surety each in the like amount to the satisfaction of learned trial Court.