ABDUL LATIF vs THE STATE and anothers

ORDER

' SAYYED MAZAHAR ALI AKBAR NAQVI, J.---By means of instant petition, the petitioner has sought for his post-arrest bail in case F.I.R. No,127/2012, dated 1-5-2012, offence under Sections 302, 324, 449, 109, 148; 149, P.P.C., registered with Police Station, Saddar Kharian, District Gujrat.

2. Allegation against the petitioner in brief, as per contents of the crime report is that on 1-5-2012, he armed with pistol along with his co-accused also armed with' their respective weapons attacked upon the complainant party. The petitioner has been ascribed the role of raising lalkara and causing firearm injury on the face of Mst. Munazza Bibi/injured, P.W. Due to fire shots of co- accused of the petitioner, Muhammad Ilyas also received firearm injuries, who subsequently died due to the said injuries.

3. Learned counsel for the petitioner contends that the petitioner is innocent and has falsely been involved in the instant case by the complainant against the actual facts and circumstances. It is argued that the petitioner has been ascribed the role of causing firearm injury on the face of Mst.

Munazza Bibi, injured, P.W. It is contended that though the occurrence in the instant case took place on 1-5-2012, but said injured P.W. Was medically examined on 5-5-2012 and her statement under section 161, Cr.P.C. Was recorded on 8-5-2012 and delayed examination of the injured P.W. As well as delayed recording of her statement under section 161, Cr.P.C. Itself creates doubts qua veracity of the same. It is argued that the petitioner has not been attributed any role qua the murder in the instant case. It is contended that no recovery has been effected from the petitioner despite remaining on physical remand with the police for a considerable period. Learned counsel submits that during the course of investigation the petitioner was not found present at the place of occurrence, rather he was only found guilty to the extent of abetment, but no evidence in this regard was collected by the Investigating Officer. It is contended that co-accused of the petitioner namely Ghaffar Latif was let off by the police and the role ascribed to the petitioner as per contents of the crime report was also falsified during the course of investigation and as such bulk of prosecutions case has been found false. Learned counsel submits that all these facts and circumstances make the case against the petitioner one of further inquiry falling within the ambit of section 497(2), Cr.P.C. It is argued that the petitioner is behind the bars since the date of his arrest and investigation being complete his corpus is no more required by the police for further investigation and as such no useful purpose would be served by his further detention in jail.

4. Contrarily, learned Deputy Prosecutor-General assisted by learned counsel for the complainant has opposed the contentions advanced by learned counsel for the petitioner. It is submitted that the petitioner is duly nominated in the promptly lodged F.I.R. With specific allegation that he made straight fire with his pistol hitting on the face of Mst. Munazza Bibi, injured P.W. Learned counsel for the complainant contends that firstly the injured PW was given medical treatment in CMH, Kharian and afterwards she was shifted to Tehsil Headquarter Hospital, Kharian on 5-5-2012. Learned counsel contends that in fact the Investigating Officer of this case has not properly investigated the case being in league with the accused .Side. It is contended that though no role is ascribed to the petitioner qua the deceased, but he is also vicariously liable for the same. It is finally argued that as case against the petitioner entails capital punishment; therefore, he is not entitled, to the concession of bail.

' At this stage, after arguing the case at full length, learned counsel for the complainant wishes to withdraw his power of attorney on behalf of the complainant. He may do so. Resultantly, the power of attorney of Malik Irfan Malik, Advocate is withdrawn.

5. I have considered the arguments advanced by learned counsel for the petitioner, learned counsel for the complainant, as well as learned Deputy Prosecutor-General and gone through the record available on file.

6. Nevertheless the petitioner is named in the promptly lodged F.I.R. But at the same time this Court is also conscious of the fact that liberty of a person is constitutional/guaranteed right, which cannot be withheld on the basis of bald allegations. The petitioner has been ascribed the role of causing firearm injury on the face of Mst. Munazza Bibi, injured, P.W. She was medically examined on 5-5-2012, whereas her statement under section 161, Cr.P.C. Was recorded on 8-5-2012. And delayed examination of the injured P.W. As well as delayed recording of her statement under section 161, Cr.P.C. Itself creates doubts qua veracity of the same. In the case of Syed Saeed Muhammad Shah and another v. The State (1993 SCM R 550), the august Supreme Court of Pakistan has observed as under:-- "----In the absence Of satisfactory nature of explanation normally rule is that statements recorded by police after delay and without explanation are to be ruled out of consideration,,,, ' Similar view was affirmed by the august Supreme Court of Pakistan in the case of Abdullah Khan v.

Abdul Qayyum and another (1993 SCM R 493) and Abdul Khaliq v. The State (1996 SCM R 1553). The petitioner has not been ascribed any role qua the murder of Muhammad Ilayas. Moreover, despite remaining on physical remand with the police for a considerable period, nothing could be recovered by the Investigating Officer. When confronted, the Investigating Officer present before the Court states in categorical terms that the petitioner was not found present at the place of occurrence, rather he was only found guilty to the extent of abetment. The co-accused of the petitioner namely Ghaffar Latif was let off by the police and the role ascribed to the petitioner as per contents of the crime report was also falsified during the course of investigation and as such bulk of prosecution's case has been found false. Learned Law Officer frankly concedes that no evidence could be collected by the Investigating Officer during the course of investigation qua hatching conspiracy by the petitioner. In such circumstances the case against the petitioner becomes one of further inquiry falling within the ambit of section 497(2), Cr.P.C. The petitioner is behind the bars since the date of his arrest and investigation being complete his corpus is no more required by the police for further investigation and as such no useful purpose would be served by his further detention in jail.

7. So far as contention of the learned counsel for the complainant that petitioner is not entitled to grant of relief prayed for because case against him falls within prohibitory clause is concerned, suffice it to say that august Supreme Court of Pakistan in the reported case Muhammad Ismail v.

Muhammad Rafique and another (PLD 1989 SC 585) has held that when otherwise case against the accused is covered under subsection (2) of section 497, Cr.P.C. He is entitled to the concession of bail as a matter of right. Similar view was affirmed by august Supreme Court of Pakistan in the case of Abdul Hameed v. Zahid Hussain alias Papu Chaman Patiwala and others (2011 SCM R 606).

The petitioner is stated to be behind the bars since the date of his arrest and the investigation being complete his person is no more required by the police for further investigation.

8. For the foregoing facts and circumstances, this court is persuaded to allow this petition as a consequence whereof the petitioner is admitted to bail after arrest subject to his furnishing bail bonds in the sum of Rs, 1,00,000 with one surety in the like amount to the satisfaction of the learned trial Court.

9. Before parting with this order it has been observed that during the course of arguments, the conduct of Muhammad Arfan Malik, Advocate, counsel for the complainant was highly objectionable, who after arguing the case at full length and at the time of pronouncement of the order withdrew his power of attorney, which is squarely deprecated. He is warned to be careful in future.