IHTISHAM RIAZ Versus State
ORDER
SADIQ MAHMUD KHURRAM, J.--- Through the instant petition filed under section 497, Cr.P.C., the petitioner namely Ihtisham Riaz is seeking post-arrest bail in the case FIR No.352 of 2018, dated 18.11.2018, registered at Police Station Saddar Hasilpur, District Bahawalpur, in respect of offences under sections 302, 201 and 34, P.P.C.
2. The allegation as against the petitioner namely Ihtisham Riaz, culled from the evidentiary material produced before the Court, is that he along with co-accused namely Tahira Muqadas, Sharjil Liaqat and Adeel Anwar committed the Qatl-i-amd of Aurangzaib Iqbal (deceased), brother of the complainant/respondent No.2.
3. I have heard the learned counsel for the parties and have gone through the record of this case with their able assistance.
4. It has been noticed by this Court that there is no eye-witness of the alleged occurrence and the prosecution is relying on the statements of the witnesses who had allegedly seen the petitioner along with his co-accused namely Tahira Muqadas, Sharjil Liaqat and Adeel Anwar accompany the deceased Aurangzaib Iqbal. In this respect statements under section 161, Cr.P.C. were recorded by the Investigating Officer of witnesses namely Abdul Nisar and Muhammad Tufail who stated that on 17.11.2018 at about 12.15 p.m. they had seen the deceased and his wife on a motorcycle being followed by the petitioner and co-accused Adeel Anwar and Sharjil Liaqat. Additionally statements under section 161, Cr.P.C. were recorded by the Investigating Officer of witnesses namely Abdul Razaq and Waqas Ashraf, who also stated that on 17.11.2018, before noon, they had seen the deceased and his wife on a motorcycle at a shop being followed by the petitioner and co-accused Adeel Anwar and Sharjil Liaqat. Both the co-accused namely Sharjil Liaqat and Tahira Muqadas have been admitted to bail. The co-accused of the petitioner namely Sharjil Liaqat was admitted to bail by this Court vide order dated 21.05.2019. Learned counsel for the complainant and the learned Deputy Prosecutor General are not in a position to distinguish the case of petitioner namely Ihtisham Riaz from the case of co-accused Sharjil Liaqat in whose favour discretion of grant of bail has been exercised by this Court. There is no distinction in the evidentiary material produced by the prosecution before the court with respect to the allegations against the petitioner and his co-accused Sharjil Liaqat. Tentatively assessing the material on record, the case of the petitioner would call for further enquiry and he deserves his release on bail also on account of identical part played by him with that of Sharjil Liaqat who has been admitted to bail. This approach would be legally justified on the principle of consistency. Reliance in this behalf is placed on the cases of Shah Nawaz and others v. The State and another (2008 SCMR 1436), Muhammad Azam v. The State (2008 SCMR 249), Muhammad Daud and another v. the State and another (2008 SCMR 173) and Shahid Hussain alias Multani v. The State and others (2011 SCMR 1673). The motive of the occurrence is also not relatable to the petitioner which was alleged to be illicit relations between the co-accused Tahira Muqadas and Adeel Anwar. Additionally, it has been held on so many occasions that last seen is a weak type of evidence which may be maneuvered by the prosecution in any case where direct connecting evidence does not come their way. This only points towards the presumption that the statements recorded under section 161, Cr.P.C., with respect to alleged last seen evidence, are manipulated. It is settled law that evidentiary value of such type of evidence i.e. evidence of last seen shall be determined by learned trial court at an appropriate stage. Reliance is placed on the case of "Rahat Ali v. State" (2010 SCMR 584), Muhammad Hussain v. Afzal Ahmed and another (1995 SCMR 932). The august Supreme Court of Pakistan has held in the case of "Abid Mehmood v. State" (2017 SCMR 728) as under:-
Reliance in this regard is also placed on case law titled as "Allah Ditta v. The State and others 2012 SCMR 184" wherein it has been held by the august Supreme Court of Pakistan as under:-
"The evidence regarding wajtakkar and extra-judicial confession being relied upon by the prosecution against the petitioner and his above mentioned co-accused namely Hussain Bakhsh has already been opined by the Lahore High Court, Lahore in its order dated 2-12-2010 passed in Criminal Miscellaneous No.13309-B of 2010 to be weak types of evidence and the evidentiary value whereof would be seen at the time of the trial. The investigation of this case has already been finalized and, thus, confirmed custody of the petitioner in jail is not likely to serve any beneficial purpose at this stage."
5. Learned Deputy Prosecutor General as well as learned counsel for the complainant further argued that during the investigation of the case the petitioner led to the recovery of a knife and certain articles belonging to the deceased on 09.12.2018. In respect of evidence of recovery, it was rightly argued by learned counsel for the petitioner that the same could be used, at the most, for corroboration of the main evidence, but by itself it cannot be basis for conviction. Learned counsel for the complainant as well as the learned Deputy Prosecutor General further submitted that the petitioner also pointed out the place of occurrence. The said memo of pointing out the place of occurrence is irrelevant and inadmissible as nothing was discovered as a result of such pointing out. The place of occurrence as well as the place of throwing the dead body were already in the knowledge of witnesses prior to their pointing out by the petitioner. Learned counsel for the complainant as well as the learned Deputy Prosecutor General further submitted that the petitioner was photographed through CCTV footage and was seen following the deceased and his wife. It is a matter of record that till date no forensic analysis was conducted of the said CCTV footage nor any graphic details were retrieved from the same by the Punjab Forensic Science Agency, Lahore. In absence of such forensic analysis no reliance can be placed on such footage. Learned Deputy Prosecutor General as well as learned counsel for the complainant further argued that during the investigation of the case the petitioner led to the recovery of a mobile phone whose data revealed that the petitioner was found present within the area of Hasilpur. Mere presence of the petitioner within the area of Hasilpur offers no corroboration to the prosecution case. It is an admitted fact that no call was traced to have been made by the petitioner either to the deceased or to his co-accused Tahira Muqadas. Reliance is also placed on case law titled as "Ijaz Ahmad and another v. The State" (1997 SCMR 1279) wherein it has been held by the august Supreme Court of Pakistan as under:-
"There is no ocular evidence to show that Muhammad Abbas was murdered by any of the present petitioners. Mere fact that Noor Muhammad and Muhammad Din saw firstly the deceased and after some distance they saw the petitioners going towards the same direction, did not mean that the petitioners were chasing the deceased or were accompanying him. Such evidence cannot be treated as evidence of last seen. Witnesses Ali Muhammad and Chand Khan do not figure in the FIR. Moreover, the evidence of extra-judicial confession may not be by itself sufficient for conviction of the petitioners. In respect of evidence of recovery, it was rightly argued by learned counsel for the petitioners that the same could be used, at the most, for corroboration of the main evidence, but by itself it cannot be basis for conviction."
6. Mere involvement in a heinous offence is no ground for refusing bail to an accused who otherwise becomes entitled for the concession of bail. The petitioner is previous non-convict and never involved in any other case. He is behind the bars since 02.12.2018; nearly nine months have elapsed but his trial has not seen any fruitful progress as yet. Investigation of the case is complete and the petitioner is no more required for further investigation, therefore, his further incarceration would not serve any useful purpose.
7. 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 offences would be determined by the learned trial court after sifting the evidentiary worth of the material produced before the same. Till then, case of petitioner would be within the domain of section 497(2), Cr.P.C. calling for further inquiry into the petitioners' guilt. The petition in hand is accepted and the petitioner is admitted to post-arrest bail subject to her 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.
8. 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 four months from the receipt of copy of this order. It is made clear that if the petitioner or any person acting on 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.
MH/I-19/L Bail granted.