Muhammad Shafi vs The State and another

Through this petition filed under section 497 Cr.P.C., the petitioner , namely Muhammad Shafi is seeking post-arrest bail in the case FIR No. 361 of 2005, dated 25.12.2005, registered at Police Station Alpa, District Multan, in respect of an of fence under section 322 PPC.

2. The allegation as against the petitioner, namely Muhammad Shafi, culled from the evidentiary material produced before the Court, is that he was involved in the Qatl-bis-sabab of Muhammad Ramzan alias Jani (deceased), son of the complainant.

3. I have heard the learned counsel for the parties, learned Deputy Prosecutor General and have gone through the record of this case with their able assistance.

4. This is a bail after arrest and only tentative assessment is permissible at this stage. The allegation of the petitioner being involved in the Qatl-bis-sabab of Muhammad Ramzan alias Jani (deceased), son of the complainant as alleged requires further inquiry and probe keeping in view the narrative of the FIR and the statements of the witnesses recorded under section 161 Cr.P.C. It was recorded in the FIR that the occurrence took place at the Dera of the co-accused Malik Khalid. It was also got recorded in the FIR that the deceased, namely Muhammad Ramzan alias Jani, on his own accord and volition, started drinking liquor and thereafter left the house of the co-accused Malik Khalid alone and subsequently died. It was further got recorded in the FIR that when the deceased became unconscious, it was the co-accused, namely Farhan who took him to Chah Takki Wala where the deceased breathed his last. Section 321 PPC defines Qatl-bis sabab as under: "Whoever , without any intention, cause death of, or cause harm to, any person, does any unlawful act which becomes a cause for the death of another person, is said to commit qatl-bis-sabab ."

The whole prosecution evidence is devoid of any allegation against the petitioner that he was responsible for the death of the deceased by doing an unlawful act, in any manner. Additionally, during the course of the pendency of the case, the co-accused of the petitioner, namely Malik Khalid and Akhtar have been admitted to bail by the learned trial Court on the concessionary statements made by the complainant as well as the witnesses. It is for the learned trial Court to hold at the trial that whether the evidence adduced by the prosecution would bring the case of petitioner within the ambit of section 322, P.P.C. or otherwise. An examination of the provisions of section 322, P.P.C. would show that no punishment of any period has been provided except the payment of Diyat. It is yet to be determined as to whether the punishment of payment of Diyat amount would bring the case of petitioner within the prohibitory clause of section 497, Cr.P.C. Be that as it may, there is no denial to the fact that section 322, P.P.C. is carrying with it, punishment of 'Diyat' only. No express provision of law existed to show that the punishment of 'Diyat' would attract the prohibitory clause of section 497, Cr.P.C. Learned counsel for the complainant as well as counsel for the State have failed to show whether punishment of payment of Diyat corresponds to the sentence of imprisonment exceeding ten years or more, bringing it within the prohibitory clause of section 497, Cr.P.C. The petitioner was arrested in this case on 26.04.2019 and since then he is behind the bars. The petitioner is a previous non-convict. The investigation qua him is complete and his person is no more required for further investigation, therefore, his continued incarceration would not serve any beneficial purpose at this stage.

5. It has vehemently been argued by the learned Deputy Prosecutor General appearing for the State as well as learned counsel appearing on behalf of the complainant that the petitioner had remained a Proclaimed Offender for about 14 years after registration of this case and, thus, he is not entitled to the concession of bail. It is settled law that in a case calling for further inquiry into the guilt of an accused person bail is to be allowed to him as of right and not by way of grace or concession and in such a case mere absconding of the relevant accused person may not be sufficient to refuse bail to him. A reference in this respect may be made to the cases of "Muhammad Sadiq v. Sadiq and others" (PLD 1985 SC 182), "Ibrahim v. Hayat Gul and others" (1985 SCMR 382) and "Qamar alias Mitho v. The State and others" (PLD 2012 SC 222). Different persons have been differently created by ALLAH ALMIGHTY. Sometimes a person, instead of facing the situation/crises opts to go into hiding believing, that his period of desolation and distress may go by as the time would pass along. The world is not empty of the chivalrous either who show bravery, poise or courage to confront a most tempestuous and chaotic situation without having a second thought. It is merely the difference of vibes which makes the human beings behave and react peculiarly. There is, however, no denial to the fact that everyone fears the ire of the police, though in variant degrees. If one despite being innocent takes a decision out of fearfulness or anxiety to escape to a safer haven, the other one, also placed in identical situation, despite having certain reservations, may decide to bear the brunt of the upheavals in a virile way. The factum of abscondence, may not be a deciding factor, while deciding the bail plea of an accused. The attending circumstances of the case and a cautious study thereof would be relevant for decision of a bail application on the touchstone of further inquiry as contemplated under section 497(2), Cr.P.C. The element of abscondence must give way to the bail plea of an accused whose case categorically constitutes need for further inquiry .

6. For what has been discussed above, the case of the petitioner becomes one of further inquiry covered by subsection (2) of section 497, Cr.P.C. Liability of petitioner for the said offence would be determined by the learned trial court after sifting the evidentiary worth of the material produced before the same. Till then, case of the petitioner would be within the domain of section 497(2), Cr.P.C. calling for further inquiry into the petitioner's guilt.

The petition in hand is accepted and the petitioner is admitted to post-arrest bail subject to his furnishing bail bonds in the sum of Rs.500,000/- (rupees five hundred thousand only) with two sureties each, in the like amount, to the satisfaction of learned trial court.

7. Needless to mention that any observations made in the above order are tentative in nature and shall not influence the trial court. Additionally , a direction is issued to the learned trial court to conclude the trial of the petitioner expeditiously , preferably within a period of five months from the receipt of copy of this order . It is made clear that if the petitioner or any person acting on his behalf causes delay in the conclusion of the trial then the trial court shall be at liberty to cancel the bail of the petitioner in accordance with law .