Lahore' MUHAMMAD RAFIQUE vs THE STATE

ORDER

' Muhammad Rafique, petitioner, through the instant petition seeks after-arrest bail in case F.I.R.

No,41 dated 16-3-1999 under section 302/148/149, P.P.C. Police Station Khairpur Sadaat, District Muzaffargarh. ,

2. Briefly the prosecution case as per F.I.R. Is that on 16-3-1999 he with .12 bore gun had made straight fire on Abdul Karim. The maternal-nephew of the complainant hitting him on the front left side of his chest: He was rushed to the hospital but he succumbed to his injuries in the way to the same.

3. The motive behind the incident is that he had suspicion of illicit intimacy between the deceased and his wife.

4. It has been contended on his behalf that he has falsely been roped in; that there is delay of about 10 hours in lodging the F.I.R. And the same shows element of consultation on the part of the complainant party before the registration of the case; that from the beginning to the last in the investigation, no enmity between him and the deceased has been found to be there and in fact there existed no illicit intimacy between the deceased and his wife; that death of the deceased occurred by fire having been received by him with his own hands accidentally and that is why in the investigation the police have found the offence to be one of Qatl-e-Khata under section 319, P.P.C. And not under section 302, P.P.C. And challan report was prepared under the same i,e, 319, P.P.C. But the same was not agreed to by the learned Illaqa Magistrate as he was of the opinion that it is a matter of evidence that whether the offence is under section 302, P.P.C. Or section 319, P.P.C.; that in view of this position it is yet to be seen that if he can be held liable for the offence under section 302, P.P.C. Or 319, P.P.C. And so his case needs further inquiry into his guilt; that so far no formal charge against him has been framed; that offence under section 319, P.P.C. Is bailable; that he was arrested in the instant case on 21-6-2001 and so is behind the bars for the last one year and seven months and his trial as yet has not commenced; and that he is previous non-convict.

5. On the other hand, the learned counsel for the State has opposed the petition on the ground that he has fired straightly shot at the deceased hitting him front left side of the chest and he succumbed to the injuries in the way to the hospital; that he has motive to kill the deceased so the offence would be under section 302, P.P.C. And not under section 319, P.P.C.; that the opinion of the Police Officer regarding application of section 319, P.P.C. In the instant case is irrelevant as the learned Illaqa Magistrate and the learned Additional Sessions Judge have observed that offence prima facie is under section 302, P.P.C.; and that the challan has been submitted in the Court and the trial is likely to commence in the near future.

6. I have carefully considered the submissions made by both the parties with the help of the available record.

7. According to the F.I.R. Due to the suspicion of illicit intimacy between his wife and the deceased, has fired straight shot with .12 bore gun at the deceased, hitting him on the front left side of his chest resulting into his death.

8. In the investigation by Shaukat Mehmood Bajwa, S.P. City Multan, it has been found that death of the deceased has occurred due to fire having hit him accidentally and so he has committed offence under section 319, P.P.C. And not under section 302, P.P.C. The learned Illaqa Magistrate vide his order, dated 22-6-2001 has observed that it is a matter of evidence that whether offence is under section 302, P.P.C. Or section 319, P.P.C. Hence, the same has directed the police to submit report under section 173, Cr.P.C. Under section 302, P.P.C. The, copy annexed with the petitiod reveals that on the submission of challan he (petitioner) has applied to the Court of learned Additional Judge, Alipur; to frame formal charge against him under section 319, P.P.C. But he declined his such request observing that initially the formal charge would be framed under section 302, P.P.C. He brought Writ Petition No,8270 of 2002 challenging such order, which was dismissed by this Court in limeline.

9. I may mention here that framing of formal charge against an accused is another thing and question of grant or otherwise of bail to him with reference to existence of prima facie case against him or the scope of further inquiry into his guilt is another.

10. However, in the instant case, though there is the opinion of the learned Illaqa Magistrate that prima facie offence under section 302, P.P.C. Is there but at the same he has observed that it is matter of evidence that which offence would be applicable either under section 302, P.P.C. Or under section 319, P.P.C.

11. The learned Additional Sessions Judge though has also observed that initially the formal charge against him would be under section 302, P.P.C. But in view of the opinion of the Police Officer of the rank of S.P. That it was offence of Qatl-e-Khata falling under section 319, P.P.C. On his part and not under section 302, P.P.C,. It is yet to be seen that he ultimately would be liable for what offence. It may be mentioned here that the opinion of the police though is not binding upon the Court but it at the same time is relevant circumstance to be taken into consideration while deciding such-like petition.

12. His co-accused Abdul Majeed, Abdul Ghaffar, Fida Hussain, Muhammad Yaqoob and Muhammad Akhtar have been declared innocent in this case.

13. All these facts bring his case within the purview of subsection (2) of section 497, Cr.P.C. Calling for further inquiry into his guilt.

14. He is behind the bar since 21-6-2001. It is almost period of one year and seven months. His trial so far has not commenced. He is stated to be previous non-convict.

15. In these circumstances, I accept this petition and admit him bail on his furnishing bail bond in the sum of Rs,1,00,000 (Rupees one lac) with one surety in the like amount to the satisfaction of the learned trial Court.