KHADIM HUSSAIN vs THE STATE and anothers

ORDER

' SARDAR MUHAMMAD SHAMIM KHAN, J.---Khadim Hussain and. Allah Dad, petitioners seek post arrest bail in case F.I.R. No. 316 of 2010 dated 14-6-2010 for the offences under sections 302, 109, 148 and 149, P.P.C. Registered at Police Station Qureshi, Tehsil and District Muzaffargarh, through two separate bail petitions i.e. Criminal Miscellaneous No.430-B of 2011 and Criminal Miscellaneous No.127-B of 2011, respectively.

2. As both aforementioned bail petitions pertain to the one and the same F.I.R., hence, are being decided together through this single order.

3. Briefly stated the allegations against the petitioners, according to the prosecution version as narrated in the F I, R. Are that Allah Dad, petitioner along with Asghar, co-accused caught hold of Muhammad Nadeem, deceased from his arms and legs whereas Khadim Hussain, petitioner by tying cloth around neck of Muhammad Nadeem, deceased committed his murder through strangulation.

4. Learned counsel for Khadim Hussain. Petitioner submits that allegation against the petitioner as narrated in the F.I.R. Was found false during investigation as on 2-8-2010 police recorded the statements of Ghulam Rasool and Bilal Hussain, P.Ws. And according to their statements co- accused Allah Dad instigated Muhammad Ali and Sher Ali to commit murder of Muhammad Nadeem, deceased; that on 11-9-2010 police recorded the statement of Sabir Hussain, P.W. And according to his statement two days back, Muhammad Ali, accused confessed before him that he along with Sher Ali, co-accused committed the murder of Muhammad Nadeem, deceased by strangulation; that on the same day i.e. 11-9-2010 police also recorded the statement of Falak Sher, P.W. And according to his statement, Sher Ali, co-accused confessed before him that Muhammad Ali, co-accused committed the murder of Muhammad Nadeem, deceased by strangulation; that after thorough investigation police came to the conclusion that in fact murder of Muhammad Nadeem, deceased was committed by Muhammad Ali and Sher Ali, co-accused persons, therefore, police declared Khadim Hussain, petitioner as innocent and prepared discharge report for the discharge of Khadim Hussain, petitioner from this case but the same was disagreed by the learned Magistrate and thereafter police placed the name of Khadim Hussain, petitioner in Column No.2 of the report under 'section 173 of Cr.P.C.; that keeping in view the facts and circumstances of the case, this is a case of two versions, one version was given by the complainant in the F.I.R.

Whereas second version has been introduced by the police and which version was correct, would be decided after the trial; that during investigation, police also came to the conclusion that sodomy was committed with Muhammad Nadeem, deceased, prior to his murder but prosecution version is silent in this regard. It has lastly been contended that case of Khadim Hussain, petitioner comes within the purview of further inquiry, therefore, he is entitled to the grant of bail.

5.Learned counsel appearing on behalf of Allah Dad, petitioner submits that there is no allegation against Allah Dad, petitioner that he caused the death of Muhammad Nadeem, deceased by strangulation rather this allegation is against Khadim Hussain, co-accused; that only allegation against Allah Dad, petitioner is that he along with Asghar, co-accused caught hold of Muhammad Nadeem, deceased from his legs and arms; that Muhammad Nadeem, deceased was hardly a boy of 12/13 years and it would be seen at the time of trial that whether it was necessary to catch hold of Muhammad Nadeem, deceased for strangulation or not; that petitioner has been falsely involved in this case simply to widen the net; that during investigation police came to the conclusion that petitioner simply abetted his co-accused Muhammad Ali and Sher Ali for the commission of offence; that allegation against petitioner of catching hold the deceased Was found 'false during investigation conducted by the police; that Allah Dad, petitioner was arrested on 4-8-2010 and he is behind the bars for about last about 11 months, therefore, it is submitted that he is entitled to the grant of bail.

6. Learned D.P.-G. Assisted by learned counsel for the complainant have contended that Khadim Hussain and Allah Dad, petitioners were specifically nominated in the promptly lodged F.I.R.; that there was specific allegation against Khadim Hussain, petitioner that he caused the death of Muhammad Nadeem, deceased by strangulation; that occular account of the prosecution finds corroboration from the post-mortem examination report as according to the opinion of the Doctor death of Muhammad Nadeem, deceased was occurred due to asphyxia caused by strangulation; that Khadim Hussain, petitioner is the single accused, who caused the death of Muhammad Nadeem, deceased; that there is specific allegation against Allah Dad, petitioner that he along with co-accused Asghar caught hold of deceased from his legs and arms and facilitated his co- accused for the commission of offence; that the opinion of police is- not binding on the Court; that it was not a case of two versions rather police simply in order to favour the petitioners has created a false story that Muhammad Ali and Sher Ali, committed the murder of Muhammad Nadeem, deceased; that evidence of extrajudicial confession of Muhammad Ali and Sher Ali was recorded after three months of the occurrence, which is a weak type of evidence; that Muhammad Ali and Sher Ali were produced before learned Magistrate for getting their statements recorded under section 164 of Cr.P.C., that Sher Ali and Muhammad Ali, both stated before learned Magistrate that they do not want to make any statement and that they did not commit the murder of Muhammad Nadeem, deceased and that police has asked them to make such statements before learned Magistrate and that they were innocent; that keeping in view the statement of Sher Ali and Muhammad Ali before learned Magistrate, mala fide of police is evident, therefore, innocence of the petitioners in these circumstances, become immaterial. Lastly, it is submitted that both petitions are liable to be dismissed.

7. I have heard the arguments advanced by learned counsel for parties and perused the record with their able assistance.

8. This occurrence took place on 14-6-2010 at about 1-30 p.m. Whereas matter was reported to the police at 2-50 p.m. With reasonable promptitude. Khadim Hussain, petitioner is specifically nominated in the F.I.R. And there is specific allegation against him that he caused the death of Muhammad Nadeem, deceased, who was a boy of 12/13 years, by strangulation, after tying cloth around his neck. It was a day light occurrence, therefore, it cannot be expected that Ghulam Yasin, complainant, who is real father of Muhammad Nadeem, deceased would falsely involve Khadim Hussain, petitioner instead of real culprit. Occular account furnished by the prosecution finds corroboration from post mortem examination report of Muhammad Nadeem, deceased as according' to the report of Doctor death of Muhammad Nadeem, deceased occurred due to asphyxia caused by strangulation. Learned counsel for Khadim Hussain, petitioner submits that it was a case of two versions, one put forth by the complainant and second was introduced by the police, during investigation. Perusal of record reveals that police recorded the statements of Sabir Hussain and Falak Sher, P.Ws. On 11-9-2010, after about three months of the occurrence and both aforementioned witnesses allegedly stated that Muhammad Ali and Sher Ali, confessed before them that Muhammad Ali committed the murder of Muhammad Nadeem, deceased by strangulation. Muhammad Ali and Sher Ali were produced before learned Magistrate, Muzaffargarh for getting their statements recorded under section 164 of Cr.P.C. Wherein they categorically stated that they did not commit the murder of Muhammad Nadeem, deceased and they did not want to make any such statement as they were innocent and that police had asked them to make such statement before the Magistrate. Keeping in view the statements of Sher Ali and Muhammad Ali, before learned Magistrate, prima facie, it seems that in order to favour Khadim Hussain, petitioner/ accused, police has introduced second version. The perusal of record reveals that Khadim Hussain, petitioner was declared innocent by the police without any cogent material, therefore, opinion of the police regarding the innocence of Khadim Hussain, petitioner is immaterial.

9. For what has been discussed above, there is no force in Criminal Miscellaneous No.430-B of 2011, therefore, petition for post-arrest bail filed on behalf of Khadim Hussain, petitioner stands dismissed.

10. So far as Allah Dad, petitioner is concerned, although he is nominated in the F.I.R. But there is no allegation against him that he caused the death of Muhammad Nadeem, deceased. Allegation against Allah ,Dad, petitioner in the F.I.R. Was that he along with Asghar caught hold of Muhammad Nadeem, deceased from his arms and legs. The prosecution did not specify in the F.I.R. That if Allah Dad caught hold of the deceased from his legs or arms. Keeping in view the age of Muhammad Nadeem, deceased; who was hardly a boy of 12/13 years, it would be adjudged at the time of trial that if it was necessary to catch hold of deceased for strangulation or not. During investigation police came to the conclusion that Allah Dad, petitioner abetted his co-accused for the commission of murder of Muhammad Nadeem, deceased and that he did not catch hold of the deceased at the time of occurrence. Allah Dad, petitioner was arrested on 4-8-2010 and he is behind the bars for about 11 months, without trial. Perusal of record further reveals that Ghulam Asghar son of Ghulam Hussain, co-accused, who allegedly caught hold the deceased from the arms and legs along with the petitioner at the time of occurrence, was declared innocent by the police during investigation vide Zimni No.25 dated 13-9-2010.

11. In these circumstances, case of Allah Dad, petitioner comes within the purview of further inquiry, therefore Criminal Miscellaneous No.127-B of 2011 is accepted and Allah Dad, petitioner is admitted to bail subject to his furnishing bail bonds in the sum of Rs.2,00,000 with one surety in the like amount to the satisfaction of learned trial Court.