ABDUL RAUF and another vs THE STATE and another

ORDER

ABDUL SAMI KHAN, J.---Through this petition under section 497, Cr.P.C. the petitioners Abdul Rauf and Farooq have sought bail after arrest in case FIR No.168/2016 dated 23.05.2016 under section 302, P.P.C., (subsequently to the extent of present petitioners section 302, P.P.C. was deleted and they were challaned under sections 324, 148, 149, P.P.C. in report under section 173, Cr.P.C.) registered at Police Station Tatlay Aali, District Gujranwala.

2. I have heard the learned counsel for the parties and have gone through the record of this case with their able assistance. This is bail after arrest and deeper appreciation of evidence is not allowed at this stage. Although the petitioners are named in the FIR with the allegation that hot words were exchanged between petitioner Farooq and deceased Muhammad Asif whereupon the petitioners along with their co-accused came outside the Haveli of complainant and the petitioner Abdul Rauf and co-accused Muhammad Qasim and three unknown accused made aerial firing while standing on the roof whereas the other accused made firing while standing in front of the gate of Muhammad Sagheer and the petitioner Abdul Rauf made straight fire with his weapon at Muhammad Asif deceased which hit him on his forehead who later on succumbed to the injuries in the hospital, but during three consecutive investigations conducted so far up to RIB, it has come on record that the petitioner Abdul Rauf has not caused any injury to the deceased rather the same has been caused by Muhammad Javed his companion who had already been allowed bail by the learned trial court on the basis of compromise. Although, opinion of the police is not binding on the Courts of law, yet the same can be taken into consideration while deciding bail applications, therefore, by keeping in view the contents of FIR and the outcome of investigation, prima facie the case of prosecution to the extent of petitioner has become a case of two versions i.e. one put forward by the complainant 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). It is also noticed that the injury attributed to the petitioner Abdul Rauf is exit wound of the injury on back of skull which shows that there is conflict between ocular and medical evidence to the extent of petitioner Abdul Rauf.

Reliance in this regard is placed on case titled as "Syed Khalid Hussain Shah v. The State 2014 SCMR /2". As far as petitioner No.2 Farooq is concerned, only allegation against him is that he was present at the spot while armed with Kalashnikov but admittedly he has not caused any injury to the deceased, Even no specific allegation of firing at the spot by him has been leveled by the complainant. It is settled law that the benefit of slightest doubt arising out of prosecution case can be given to the accused even at bail stage. Reliance in this regard is placed on case titled as "Imbrass and another v. The State and another" "2016 SCM R 1558." As far as question of sharing common intention for the murder of deceased Muhammad Asif with their co-accused is concerned, the same shall be decided by the learned trial court after recording evidence.

Admittedly, the petitioners are previous non-convict. They are behind the bars since 03.02.2017.

Investigation of the case is complete and the petitioners are no more required for further investigation. Their further incarceration in jail would not serve any useful purpose.

3. For what has been discussed above, the case of the petitioners becomes one of further inquiry covered by subsection (2) of section 497, Cr.P.C. This petition is, therefore, allowed and the petitioners are granted bail after arrest subject to their furnishing bail bond in the sum of Rs.2,00,000/- (Rupees two hundred thousand only) each 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 strictly confined to the decision of this bail petition only.