ABID HUSSAIN KHAN vs THE STATE and another

ORDER

' CH. IFTIKHAR HUSSAIN, J.--- Petitioner Abid Hussain Khan through the instant petition has prayed for after arrest bail in case F.I.R. No,119 registered under sections 302, 324, 148, 149, 109 P.P.C. With Police Station Kot Mithan, District Rajanpur on 5-5-2009:

2. Briefly, the allegation against him as per the F.I.R. Is that he has abetted the Qatl-e-amd of Hidayat Ullah deceased and attempt to the Qatl-e-amd of injured Malik Hamid.

3. After hearing the learned counsel for the parties and perusing the record, I find that there is mere allegation of abetment of Qatl-e-amd of the aforesaid deceased and attempt of the Qatl-e-amd of injured named above. There is no other allegation against him either in the F.I.R. Or anywhere in the record. The F.I.R. Indicates not that he either was present at the spot or in what manner has caused such abetment.

4. It is interesting to note here that the prosecution about four months after the alleged incident has brought on the record the affidavits of two persons namely Allah Bux and Raheem Bux. These are in respect of his alleged conspiracy or abetment in the matter. These are to the effect that they have heard him instigating his co-accused to do away with the deceased and the injured as well.

Firstly, this was about four months after the alleged incident. Secondly, the manner of such instigation or abetment/conspiracy is ex facie not appealing to reason. It on the face of it is hard to imagine that a person will hatch up conspiracy in a public place like hotel and that, too so openly that other people may hear or know it. It is a matter of common observation or experience that people hatch up conspiracy very secretly, so that other may not know it. However, I would avoid to make any further comment regarding the same as it may not be prejudicial to the case of the either of the parties at any subsequent stage to come in the case.

5. Besides this, the fact also remains that he has been found innocent during the investigation and a report for his discharge was made but it was not agreed to by the learned Magistrate concerned.

Although the ipse dixit of police is not binding upon Court yet it is a relevant in circumstance to be taken into consideration, while deciding such like' question.

6. The evidentiary value of the affidavit of the aforementioned persons or their statements under section 161, Cr.P.C. On the record, if any, is open to serious consideration at trial. For all these reasons, I am of the clear view that his case certainly is open to further inquiry into his guilt and so, the same is covered under subsection (2) of section 497, Cr.P.C. In thi regard, I place reliance upon the case of Manzoor Ahmed and another v. The State 1997 PCr.LJ 850 (Lahore), Syed Amanullah Shah v. The State and another PLD 1996 SC 241 and Abdur Rehman and another v. The State 2009 YLR 1230.

7. It may be mentioned here that the learned counsel for the complainant has contended that he is an influential person of the area being Sardar of the tribe and it is very much likely that he may repeat the offence in case if released on bail. I am afraid that if such contention may be made basis for withholding of relief, then hardly anybody may be set at liberty, even though, his case may be for bail.

8. Even otherwise, I have the least hesitation to say here that in case of repetition of offence, law will take into it's own course. The learned counsel for the complainant in support of his above plea has placed reliance upon the case of Mst. Hanifan Bibi and another v. Zulfiqar and another PLD 2001 Lah. 123 and Wajid Ali V. Mumtaz Ali Khan and another 2000 MLD 1172 (Lahore). In this regard, I may mention here that it is by now well-settled proposition in criminal administration of justice that each criminal case is to be adjudged in the background of it's own facts and circumstances and the facts of two criminal cases seldom coincide. Even otherwise, the above authorities have no apt applicable to the case of the petitioner for the distinguishable facts and circumstances of these cases than that of him.

9. One another notable fact to be taken into consideration is that he statedly has been arrested on 14-8-2009. So, it was recently. It is but well-settled proposition that case of an accused, when otherwise, may be found fit for bail, he then cannot be detained unnecessarily for a moment even.

10. In these circumstances of the case, I am of the considered view that the case for his enlargement on bail has been made out. Resultantly, I accept this petition and admit him to bail subject to his furnishing bail bonds in the sum of Rs,1,00,000 (Rupees one lac only) with one surety in the like amount to the satisfaction of the learned trial Court.