ADIL ZAMAN Versus State
ORDER
AFTAB AHMED GORAR, J.--- On rejection of his earlier bail application by the trial court vide order dated 14.01.2020 the applicant Adil Zaman son of Ali Zaman has approached this court for post arrest bail in Crime No. 382/2019 under section 302/ 34 P.P.C. registered with Police Station Darakhshan, Karachi.
2. Heard arguments and perused the record.
3. Learned counsel for the applicant submitted that the applicant has falsely been implicated in this case by the complainant with collusion of the police. He submitted that name of the applicant is not mentioned in the FIR and no incriminating article has been recovered from the exclusive possession of the applicant; the applicant has been implicated in this case on the basis of statements under section 161, Cr.P.C. made by the PWs wherein they have stated that applicant was present at the place of incident with empty handed. He contended that co-accused Atif Zaman had business relations with the deceased and the dispute arose when the deceased became defaulter in payment of profit; the trial court had not considered the facts that present applicant has been involved because he is real brother of main accused Atif Zaman. He further contended that the PWs who claimed to be the eye-witnesses have levelled the allegation against the applicant of were presence at the spot, therefore sharing of common intention requires further inquiry. To support his contentions learned counsel for the applicant has relied upon the cases of Shabbir Ahmed Rohjho alias Shabbo v. The State (2018 PCr.LJ Note 73), Khiyal Saba and another v. The State and others (2020 SCMR 340), Khalid v. Mst. Akbar Jan and another (2017 MLD 599), Waqar v. The State (2018 PCr.LJ Note 74), Nadeem v. The State and another (2016 SCMR 1619) and the case of Allah Ditta v. The State and others (2012 SCMR 184).
4. On the other hand learned counsel for the complainant submitted that non-mentioning of the name of applicant in FIR is no ground for consideration of bail. He further submitted that eye-witnesses of the case have named the applicant as accomplice of the co-accused Atif Zaman. He argued that the crime weapon so recovered from the possession of co-accused is the licensed pistol of applicant Adil Zaman. He further argued that sufficient material is available on record to connect the applicant with the crime. He opposed the grant of bail to the applicant and submitted that applicant is involved in a heinous crime due to which two persons have lost their lives. To support his contention he has relied upon the cases of Shoukat Ali v. The State (PLD 2007 Supreme Court 93) and Muhammad Ali v. The State (PLD 2012 Sindh 272). Learned Deputy Prosecutor General Sindh adopted the above arguments made by learned counsel for the complainant and opposed the grant of bail to the applicant.
5. Admittedly the complainant is not the eve-witness of the incident and she had lodged the FIR on the information received by her from wife of PW Umar Rehan via phone. After lodgment of the FIR the Investigating Officer had recorded 161, Cr.P.C. statements of the PWs namely Umar Rehan and Usama who were present at the place of incident who stated that present applicant was accompanied with accused Atif Zaman. Similarly witnesses of murder of Khizar Hayat in their 161, Cr.P.C. statements stated that one unknown man had joined the accused Atif Zaman soon after firing. Perusal of record reveals that prosecution witness have only levelled the allegation of mere presence and nothing else against the present applicant. The complainant has stated in the FIR that wife of PW Umar Rehan had informed her through phone about the incident which means that PW Umar Rehan has relations with the complainant party therefore false implication cannot be ruled out. Mere presence of applicant at the spot with no specific roll does not disentitle him from concession of bail. Prima facie, case against applicant appears to be doubtful benefit of which shall go to the applicant. In the case reported as Syed Anamullah Shah v. The State (PLD 1996 SC 241) Hon'ble Supreme Court has held as under:
"So whenever reasonable doubt arises with regard to the participation of an accused person in the crime or about the truth/probability of the prosecution case and the evidence proposed to be produced in support of the charge, the accused should not be deprived of benefit of bail. In such a situation, it would be better to keep an accused person on bail then in the jail, during the trial. Freedom of an individual is a precious right. Personal liberty granted by a Court of competent jurisdiction should not be snatched away from accused unless it becomes necessary to deprive him of his liberty under the law. Where story of prosecution does not appear to be probable, bail may be granted so that further inquiry may be made into guilt of the accused".
6. In such cases bail is granted on the ground of further inquiry for the reason that the question as to which party is correct, is to be decided by the trial Court which is supposed to record evidence and also appraise the same in order to come to a final conclusion in this regard. At bail stage, deeper appreciation of evidence and circumstances appearing in the case are not permitted and only tentative assessment is to be made, however, where accused satisfies the Court that there are reasonable grounds to believe that he is not guilty of such offence, then the Court must release him on bail. Wisdom is sought from the case titled Yar Muhammad v. The State and another reported in 2004 YLR 2230.
7. It may not be out of place to mention here that the object of bail is neither punitive nor preventive and therefore, deprivation of liberty must be considered a punishment, unless it may be required to ensure the presence of accused during trial. The punishment begins after conviction and not before it as in criminal justice system every man is deemed to be innocent until duly found guilty. It needs not to re-emphasize that the purpose of putting the un-convicted persons in custody is nothing but to secure their attendance at the trial. Even otherwise, life and liberty of a citizen is very precious and guaranteed by Article 4 of the Constitution of Islamic Republic of Pakistan, 1973, as has been observed by the Hon'ble Supreme Court of Pakistan in the case reported in PLD 1989 SC 585.
8. Keeping in view the facts and circumstances of the case, I hold that reasonable doubt arises with regard to involvement of applicant in this case. Hence, case of the applicant prima facie calls for further inquiry in terms of subsection (2) of section 497, Cr.P.C. Consequently, the applicant is admitted to bail on his furnishing surety in the sum of Rs. 2,00,000/- (Rupees two lac only) and P.R. Bond in the like amount to the satisfaction of the trial court. The instant Criminal Bail Application stands disposed of.
SA/A-108/Sindh Bail granted.