SHABBIR HUSSAIN vs THE STATE and another

ORDER

' IJAZ AHMAD CHAUDHRY, J.--- Shabbir Hussain/petitioner, through petition, seeks post-arrest bail in case F.I.R. No,337, registered at Police Station Dinga, Gujrat, on 13-8-2009, for offences under sections 302, 109, 148 and 149, P.P.C.

2. From the perusal of the contents of F.I.R, it reveals that the petitioner along with other co- accused, while armed with firearms, made firing during the incident, wherein Muhammad Zaman and Abdul Majid lost their lives. The role of firing on the back of Abdul Majid with kalashnikov was assigned to the petitioner.

3. Learned counsel for the petitioner contends that ten accused armed with fire-arms were nominated in the F.I.R; that allegation against them was that they had fired at both the deceased; that the petitioner had surrendered himself, but during investigation he has been found innocent; that respectables of the locality also appears before the complainant and took oath on Qura'n while sitting in the mosque about the innocence of the co-accused, who had been declared innocent on the special oath, but the complainant had not accepted same on behalf of the petitioner; that Muhammad Khan co-accused, who was found guilty during investigation and was placed in Column No,3 of the Challan, has also been granted bail by the learned trial Court vide order dated 25-1-2010, while Jafar Iqbal co-accused, against whom the allegation of indiscriminate firing was levelled , has been allowed bail by this Court vide order dated 11-1-2010; and that case of the petitioner being on better footing to that of the case of the said co-accused, he is also entitled to the same treatment on the principle of consistency.

4. Learned D.P.-G. Assisted by the counsel for the complainant states that it was a promptly lodged F.I.R. Regarding the occurrence, which had taken place in the daylight and there were no chances of misidentification of the accused; that the petitioner has been named in the F.I.R. With specific role of firing at Abdul Majid deceased; that according to post-mortem report Abdul Majid deceased had nine entry wounds and nine exit wounds on his body, while other deceased had eleven entry wounds and eleven exit wounds on his body; that the firing was made from the close range, as the Doctor had observed blackening on the injuries; that case of the petitioner is distinguishable to that of Muhammad Khan and Jafar Iqbal co-accused; that 32 empties were collected from the place of occurrence; and that the petitioner was arrested on 2-1-2009 while the other accused are still absconders. However, learned DPG has conceded that co-accused namely Lal Khan, Adil Hussain, Nisar, Babar Hussain and Zulfiqar have been declared innocent during investigation.

5. I have heard the learned counsel for the parties and gone through the record.

6. Ten accused including petitioner have been nominated in the F.I.R. One is unknown while allegation of abetment is against two persons. Out of nine accused five accused namely Lal Khan, Adil Nisar, Babar Hussain and Zulfiqar have been declared innocent during investigation on the statement allegedly made by the complainant on 13-9-2009, who accepted their innocence on the basis of special oath took by one Mehdi Khan while sitting in the mosque whereas the innocence of the petitioner on the basis of special oath was not accepted by the complainant. It creates doubt that if the complainant and the other eye-witnesses had seen the occurrence, which had taken place in the daylight, then why he had accepted the special oath and felt satisfied that the above- mentioned accused were innocent, who were got discharged from the case. On the other hand, learned D.P.-G. After perusing the record submits that though the petitioner has been found innocent during investigation, but special oath on his behalf was not accepted by the complainant.

Even otherwise, during investigation nothing was recovered from the petitioner. It is also not denied that two of the co-accused namely Muhammad Khan and Jafar Iqbal have already been granted bail and case of the petitioner is not distinguishable from the said co-accused and he is also entitled to the same relief, who cannot be kept behind the bars for indefinite period when the case is found to be one of further inquiry and it is settled principle of law that the benefit of doubt, if arises, at any stage of the case has to go to the accused and under section 497, Cr.P.C. No time has been framed for the grant of bail. Moreover, bail cannot be withheld as punishment merely for the reason that the accused is involved in a case of heinous nature.

7. For the foregoing discussion, this petition is allowed and the petitioner is admitted to bail subject to his furnishing bail bonds on the sum of Rs. One lac with two sureties each in the like amount to the satisfaction of the learned trial Court. However, it is made clear that the findings arrived at by this Court are based on the tentative assessment of the evidence available on the record and will- not prejudice the case of either party at the time of final conclusion of the case and the learned trial Court is directed to proceed with the trial expeditiously.