ASAD NAEEM vs The STATE and another

ORDER

' AMIN-UD-DIN KHAN, J.---Petitioner Asad Naeem has moved this petition for grant of post arrest bail in case F.I.R. No, 816 of 2012 dated 23-9-2012 registered under sections 302, 324, 452, 109 and 34, P.P.C. At Police Station City-B/Division District Sheikhupura.

2. Initially the F.I.R. Was registered under sections 324, 452, 34 P.P.C., however, on the death of injured lady Mst. Ghazala Tufail, who was also complainant of the F.I.R., sections 302 and 109 P.P.C. Were added by the police.

3. Precisely, the allegation against the petitioner is that on 23-9-2012 at about 11-15 a.m. His co- accused, at his behest, fired at the complainant Mst. Ghazala Tufail, which hit her on the belly, who subsequently died on 26-9-2012.

4. Learned counsel for the petitioner contends that allegations against the petitioner are false, he has not committed any offence. Learned counsel while referring the order dated 11-2-2013 passed by this Court in Criminal Miscellaneous No, 679-B of 2013 whereby co-accused of the petitioner namely Muhammad Zubair was granted post arrest bail, argues that most of the points involved in this case have been settled in the said order, though states that the said accused has been declared innocent whereas petitioner has not been declared so. States that there is no direct evidence against the petitioner to connect him with the commission of the alleged offence; that in his statement recorded on 14-10-2012 Syed Ihtisham-ul-Haq son of the deceased complainant lady, nominated the petitioner whereas in the application moved by him before the DPO though petitioner's name was mentioned at Sr.No,8 in the application but no role was assigned to him.

Further that on the basis of statement of his co-accused, petitioner cannot be roped in the case; that after registration of the instant case on the same day i,e, on 23-9-2012 Intizar Hussain, who is injured and the sole witness of the F.I.R., appeared before the I.O. And supported the contents of the F.I.R. i,e, not nominating the petitioner, that the alleged confession recorded by the police also cannot be used against the petitioner at this stage, which is otherwise in contradiction with Article 39 of the Qanun-e-Shahadat, Order, 1984, thus has no value at all; that the alleged witnesses namely Ghulam Abbas and Ahmad Hassan got recorded their statements under section 161 of Cr.P.C. After one month of the occurrence and which were even recorded after 9 days of recording of statement of son of the deceased complainant lady; that even the statements of both these witnesses i,e, Ghulam Abbas and Ahmad Hassan are in contradiction with the statement of Syed Ehtisham-ul-Haq; that motive does not connect the petitioner with the occurrence; that case of the petitioner is at par with that of his co-accused Muhammad Zubair rather on better footing; that Sheikh Muhammad Waseem co-accused who was nominated in the F.I.R. By the mouth of the deceased was granted post arrest bail by the learned ASJ vide order dated 27-2-2013 against whom different F.I.Rs, were lodged by the deceased herself and some dispute regarding property was also pending; that charge has not been framed so far; that trial has not been commenced; that nothing has been recovered from the possession of the petitioner during the course of investigation; that petitioner is previously non-convict in any case. States that in the above circumstances case of the petitioner falls within the ambit of section 497(2) of Cr.P.C. Being one of further inquiry, therefore, he is entitled to the concession of bail. While relying upon "Muhammad Amjad Ghori and another v. The State" (1977 PCr.LJ 490), "Allah Bakhsh v. The State" (2007 PCr.LJ 1755) and "Bashir alias Taddy v. The State" (1989 PCr.LJ 951) prays that this petition be allowed and petitioner be released on post arrest bail.

5. On the other hand, learned D.P.G. Assisted by learned counsel for the complainant has vehemently opposed this petition on the ground that witnesses have specifically nominated the petitioner with specific role; that there is motive against the petitioner. Learned counsel for the complainant as well as D.P.G. Has admitted that no recovery has been effected from the petitioner except Rs,4000; that case of the petitioner is distinguishable from his co-accused as they were declared innocent while petitioner has been declared guilty. Learned counsel for the complainant states that 17-5-2013 is fixed for framing of charge, therefore, when occurrence is not being denied, it is not a stage for grant of bail rather a direction be given to the learned trial court to complete the trial within a specific period.

6. I have considered the arguments advanced by learned counsel for the parties and have gone through the record with their able assistance.

7. Admittedly, petitioner is not nominated in the F.I.R. The circumstances of this case are very peculiar as the complainant who got registered the F.I.R. On 23-9-2012 and subsequently died on 26-9-2012 but till her death she has riot specifically nominated the petitioner with the commission of the alleged occurrence. Even her son Syed Ehtishamul-Haq moved application before the DPO and got recorded his statement under section 161, Cr.P.C. On 14-10-2012 who admittedly is not an eyewitness, has also not ascribed any role whatsoever to the petitioner in his application. I have noticed that the sole witness of the F.I.R., who is also injured, has supported the contents of the F.I.R.

In which petitioner figures nowhere. The only evidence against the petitioner is his confessional statement recorded by the 1.0., then confession of two co-accused namely Talib Hussain and Arslan, which cannot be used against the petitioner at this stage. Motive is also not attributed to the petitioner. Petitioner's co-accused Muhammad Zubair has also been allowed post arrest bail by this Court. In these circumstances, case of the petitioner requires further probe falling under section 497(2) Cr.P.C. Petitioner, who is detained in the lock up since 30-10-2012 and no more required by the police for further investigation purposes, is entitled for concession of post arrest bail. Resultantly, when there is no direct evidence against the petitioner to connect him with the commission of alleged offence, this petition is allowed. Petitioner is directed to be released on bail subject to his furnishing bail bonds in the sum of Rs,1,00,000 (Rupees one hundred thousand only) with two sureties each in thee like amount to the satisfaction of learned trial Court.