' Sabir Hussain, Shahid Sabir, Khalid and Mudassar, the petitioners, by filing the instant petition, seek their post-arrest bail in case F.I.R. No,513, dated 18-8-2004, registered at Police Station Sarai Alamgir, District Gujrat at the instance of Tariq Mahmood son of Muhammad Younas for offences under sections 302, 109, P.P.C.
2. Briefly the facts of the case as narrated in the F.I.R. By the complainant were that he was a labourer by profession; on the fateful date at about 8-30 p.m., he along with his maternal-cousin Rashid Mahmood son of Muhammad Yaqoob, Asim Mahmood son of Abdul Ghafoor, and Shahid Sabir son of Sabir Hussain (the petitioner) were present in the Haveli of Rashid Mahmood; .When Rashid Mahmood went outside the Haveli to go home, Shamraiz alias Shamma son of Inayat Ali, who had been carrying a hatchet and was available near the outer gate of the Haveli, on catching sight of Rashid Mahmood launched an attack and inflicted a hatchet blow on his head; the second injury caused by him landed on right side of the head near the ear of Rashid Mahmood, who fell on the ground; thereafter, Shamraiz delivered two more blows, one after the other, on the left jaw and left arm of Rashid Mahmood; the complainant along with Asim Mahmood and Shahid Sabir had witnessed the occurrence and identified Shamraiz alias Shamma in the light of electric bulb, who while wielding his hatchet decamped from the scene. According to the complainant, he as well as Asim Mahmood, Shahid Sabir, Muhammad Afzal and Raja Zahid Mahmood, residents of the village, shifted Rashid Mahmood in injured condition to Civil Hospital, Sarai Alamgir, who breathed his last there.
' The reason behind this episode was that Shamraiz alias Shamma had a suspicion that Rashid Mahmood had illicit liaison with his sister Mst. Tasleem Akhtar and having this grudge in his mind, he has committed the crime. Resultantly, the instant F.I.R. Had been recorded.
3. The petitioners had been arrested on 26-9-2004 and are in custody since then. Their plea for post-arrest bail did not find favor with the learned Additional Sessions Judge, Gujrat, who dismissed their application vide order, dated 7-12-2004. Hence, the instant petition.
4. The learned counsel for the petitioners submitted that the petitioners have been implicated for allegedly abetting the offence of murder, that their names did not appear in the F.I.R. And surfaced for the first time in the supplementary statement made by the complainant; that Shahid Sabir petitioner in fact had been mentioned as an eye-witness in the F.I.R. And according to the complainant he along with other eyewitnesses, namely, Asim Mahmood, Shahid Sabir, Muhammad Afzal and Raja Zahid Mahmood had removed the injured to the Civil Hospital Sarai Alamgir, where the latter had succumbed to his injuries; that the story later on coined by the prosecution regarding conspiracy having been hatched by the present petitioners for killing Rashid Mahmood is absolutely unnatural and does not appeal to reason; that ott of the two conspiracy witnesses, Muhammad Asif is a real brother of the complainant and it was very unnatural that after overhearing the conspirators i,e, the present petitioners, he did not immediately inform his brother and other relatives. The learned counsel finally argued that the supplementary statement allegedly recorded on 18-8-2004, i,e, the day of occurrence, has been ante-dated to lend touch of credibility to the same and the fact that the draftsman, who had visited the spot on 22-8-2004 and had mentioned Shahid Sabir as an eye-witness of the occurrence, strengthens the claim of the petitioners that the supplementary statement had been ante-dated. In support of his contentions, he relied on Syed Amanullah Shah v. State and another PLD 1996 SC 241, wherein the Honourable apex Court did not interfere with the order of the High Court granting bail to an accused, who was present at the spot at the time of occurrence and the allegation against him was that hour before the occurrence he had in the presence of two P.Ws. Instigated his co-accused to eliminate the deceased. He also relied on Muhammad Akhtar v. The State 1998 Cr.LJ 682 where bail was allowed by this Court to an accused against whom there was allegation of conspiracy/abetment; but was not present at the spot.
5. On the other hand, the learned counsel for the complainant argued that the challan has already been submitted and the trial is likely to commence; that charge could not be framed on 14-1-2005 due to the fact that co-accused of the petitioners, namely, Zaheer, is an absconder, that the petitioners have not been able to point out any mala fide on the part of the complainant for their false implication. They finally argued that the petitioners have been found to be guilty in the successive investigations.
6. The learned counsel for the State while adopting the arguments of the learned counsel for the complainant opposed the grant of bail to the petitioners.
7. I have heard the learned counsel for the parties at length and have also perused the record brought by Manzoor Ahmad, S.-I.
8. It has been observed that the F.I.R. Had been recorded at 10-30 p.m. On 18-8-2004, whereas it is claimed by the prosecution that the supplementary statement was also recorded on the same date. It would mean that the supplementary statement was recorded within ninety minutes of the recording of the F.I.R. According to the supplementary statement, the complainant was quite shocked because of the occurrence, that is why he had omitted the names of the present petitioners and the role of conspiracy ascribed against them. It is quite strange that he regained his senses within minutes of the recording of the F.I.R. And implicated the present petitioners. The contention of the learned counsel for the petitioners that the supplementary statement had been ante-dated cannot outrightly be repelled inasmuch as the Draftsman had visited the spot on 22- 8-2004 and according to him he had taken notes at the pointation of the witnesses, which included Shahid Sabir, one of the petitioners, who later on was converted into an accused person.
The story narrated by the conspiracy witnesses, namely Farooq Haider and Muhammad Asif that they overheard the name of the deceased Rashid Mahmood also cannot be taken on its face value and needs to be taken within a pinch of salt. I would not further like .To dwell on the merits of the case, as it may amount to travelling outside the limits of tentative assessment of the material available on the record. Suffice it to say that role of conspiracy/abetment attributed to the present petitioners in the supplementary statement needs further probe within the meanings of subsection
(2) of section 497, Cr.P.C. The mere fact that the challan has been submitted and the trial is likely to commence will not deter this Court to extend the concession of bail, if otherwise the petitioners are entitled to the said concession on merits.
9. Accordingly, by accepting this petition, I direct that the petitioners be released from custody subject to their furnishing bail bonds in the sum of Rs,50,000 (Rupees fifty thousand) each with one surety each in the like amount to the satisfaction of the learned trial Coml.