Muhammad Idan son of Muhammad Aslam, petitioner. seeks Post-arrest bail in case FIR No 561/2004, registered at Police Station Baghbanpura, Lahore, for offence under Sections 302/34 PPC.
2. The case of the complainant Sabir Ali Nisar son of Haji Nawabud-Din, as it unfolded in-the FIR, was that he works as an accountant in Al-Ameen Dying Industry at 51.--Ravi Road, Lahore on 28.8,2004 about 5.00 p.m. his maternal cousin Muhammad Ashraf .Ameen called him at his residence from Grammar School Lakhu Der Road, and informed that the house of his brother Mirza Haider Aif situated at 69-Siraj Pura, Bund Road was locked and that extremely foul smell was emanating from inside; on receipt of the call he and his cousin Muhammad Ashraf who had also rung up emergency 15 alongwith some residents of the Mohalla reached the spot; on breaking open the lock the corpse of his elder brother Mirza Haider Ali son of Nawab Din aged 75/76 years was found lying on a bed besmeared in blood with hands and feet tied with a cloth converted into a rope; his entire body, face and the neck bore injuries caused with. some sharp-edged weapon.
Resultantly the instant FIR had been recorded.
3. The petitioner moved an application for post arrest bail which was however turned down by the learned Addl. Sessions Judge, Lahore, vide order dated 24.5.2005 prompting him to move the instant application:
4. I have heard the learned counsel for the parties and have perused the record brought by Muhammad Khalid ASI, P.S. Baghbanpura, Lahore.
5. It has been observed that the petitioner's name did not feature in the FIR and that it had surfaced for the first time in a supplementary statement made by the complainant Sabir. Ali Nisar, after registration of the FIR on 28.8.2005, wherein he had stated that after getting the case registered he had carried out search of the house of the deceased Mirza Haider Ali and had found that a V.C.D., a V.C.R., an electric iron and a mobile phone belonging to the deceased were missing and that when he mentioned this fact persons present there, his nephew Arshad son of Ashraf and his friend Abdul Khaliq son of Muhammad Akram informed him that on 24.8.2004 about 9.30 in the morning they had been Irfan, Waris and Javaid at Bus Stop of Model Weighbridge and that on the said occasion Irfan was carrying a VCD on this shoulder, Waris was holding a VCR whereas Javaid was holding an electric iron. Towards the end of. his supplementary statement the complainant stated that it . was these persons who had committed murder and had stolen the articles ana were the actual culprits.
Apart from the supplementary statement, the statements of two witnesses namely Muhammad Arshad son of Muhammad Ashraf and Abdul Khaliq son of Karam Din had also been recorded. Both of them had stated that about 9.30 a.m. when they were proceeding towards Shadipura on a scooter they had witnessed Irfan petitioner, Waris and Javaid carrying VCD, VCR and electric iron.
They also submitted that all three of them work at Pan Mandi New Anarkali and are known to them previously. They added in their statements that on coming to know about the murder of Mirza Haider Ali, they had come to his place and had found out that they had stolen the said articles from the house of Mirza Haider Ali and had murdered him. I would not like to comment in detail on the quality of the material available with the prosecution against the petitioner. A plain look at the statements of both the witnesses namely Muhammad Arshad and Abdul Khaliq reveals that according to them they had learnt that the petitioner and his on-accused had stolen the articles and had murdered the deceased. These statements on the . face of it appear to be based on hearsay and prima facie are not admissible. The supplementary statement of the complainant also suffers from this inherent defect. No recovery had been effected from the petitioner.
6. In view of the material available with the prosecution, it can safely be assumed that at present there are no reasonable grounds for believing, that the petitioner had committed an offence entailing capital punishment. His case is pre-eminently one of further inquiry, within the contemplation of sub-section (2) of Section 497 Cr.P.C.
7. Resultantly this petition is allowed and the petitioner is admitted to bail in the sum of Rs, 50,000/- with one surety in the like amount to the satisfaction of the learned trial Court.
8. The observations made hereinafter are tentative in nature and are not designed to influence the course of trial in any manner whatsoever.