MUKHTAR AHMAD vs The STATE and 2 others

ORDER

' ABDUL SAMI KHAN, J.---Through this petition under section 497, Cr.P.C. The petitioner has sought bail after arrest in case FIR No,916/15 dated 03.12.2015 under sections 302, 148, 149, P.P.C., registered at Police Station Saddar Kharian, District Gujrat.

2. The arguments advanced by learned counsel for the parties have been heard and record of this case has been perused with their able assistance. This is bail after arrest and deeper appreciation is not allowed at this stage. Although petitioner is named in FIR, yet the fact remains that no specific role has been assigned to him therein and only general allegation has been leveled against him that he along with Nasir Iqbal, Mudassar Iqbal and Qaiser Iqbal co-accused made firing at Khan Muhammad deceased. During the course of investigation, it has come on B the surface of record that the petitioner was not present at the spot at the time of occurrence and the opinion of the investigating officer in this regard is prima facie supported from the call data, CDR of mobile number of the petitioner as well as affidavits of eight different persons of the locality.

Admittedly the complainant has never challenged the outcome of investigation in respect of the petitioner either by moving application for the change of investigation or by filing private complaint, which prima facie shows his satisfaction about the outcome of investigation.

Furthermore, in view of the allegations contained in FIR and the facts emerged during the course of investigation, prima facie the case against the petitioner has become a case of two versions; one put forward by the complainant in FIR and the other came on record during investigation and which version is correct shall be determined by the learned trial court after recording evidence.

Reliance can easily be placed upon 2012 SCM R 1137 (Ehsan Ullah v. The State) wherein it has been held by the Hon'ble Supreme Court of Pakistan as under:- "This shows that in the present case the prosecution itself has two versions vis-a-vis the petitioner, first of the complainant party according to which the petitioner was present at the spot and had resorted to firing and second of the investigating agency according to which the petitioner was not present at the spot and he was abetting his co-accused from behind the scene. All these considerations surely render the case against the petitioner one of further inquiry into his guilt."

' In this regard, guidance can also be sought from a latest pronouncement of Hon'ble Supreme Court of Pakistan in case titled "Zaigham Ashraf v. State, etc." (2016 SCM R 18), wherein the apex Court was pleased to observe as under:- "Keeping in view the two conflicting versions; one given by the complainant in the FIR and the other by the Investigating Agency based on documentary evidence with regard to the plea of alibi, the case of the present petitioner has become certainly one of further inquiry, falling within the ambit of subsection (2) of section 497, Cr.P.C., where grant of bail becomes the right of accused and it is not a grace or concession, to be given by the Court. In the absence of any exceptional ground or reason, denial of bail in such a case would amount to exercise a discretion in a manner, not warranted by law and principle of justice."

Admittedly, the petitioner is previous non-convict; he is behind the bars since his arrest in this case; investigation to his extent is complete and he is no more required for further investigation. Mere heinousness of offence is no ground to refuse bail if otherwise the accused becomes entitled to the concession of bail. It is also settled law that benefit of doubt can be given to the accused even at bail stage, therefore, no useful purpose would be served by keeping the petitioner behind the bars at this stage.

3. For what has been discussed above, taking guidance from the case-law reported as 2016 SCM R 1558 the case of the petitioner becomes one of further inquiry covered by subsection (2) of section 497, Cr.P.C. This petition is, therefore, allowed and the petitioner is granted bail after arrest subject to his furnishing bail bond in the sum of Rs,200,000/- (Rupees two hundred thousand only) with two sureties each in the like amount to the satisfaction of the learned Trial Court.

4. The observations made above are tentative in nature and are F strictly confined to the decision of this bail petition only.