' HASNAT AHMAD KHAN, J.---Both the petitioners have sought post-arrest bail in case F.I.R. 'No, 105, dated 11-12-2005 registered at Police Station Bangla Achh, Distt. Rajanpur in respect of offences under sections 302/201/148/149, P.P.C.
2. Precise allegation against the petitioners levelled in the F.I.R. Registered at the instance of Nathu Khan complainant is that on 16-10-2005 his brother, namely, Maid Khan went to visit his in-laws; that the complainant was informed by Rasool Bukhsh and Chandi P.Ws. That on 18-10-2005 while passing near the house of Badla co-accused the said P.Ws. Heard shrieks coming from the said house upon which they saw the petitioners along with six others while armed with various weapons. It was further alleged that Maid Khan (deceased) was being forced by Dhani Bukhsh co- accused to divorce his wife by putting thumb-impression on a divorce deed but Maid Khan (deceased) did not oblige them whereupon all the accused caused blunt weapon injuries to him who succumbed to the same. Thereafter all the accused set off towards the river to throw the dead - body upon which the said witnesses reportedly chased the culprits but they were forbidden by the said accused. On the basis of said allegations the F.I.R. Was registered.
3. In support of this petition, learned counsel for the petitioners has contended that there is inordinate delay of about two months in lodging the F.I.R. Which by itself makes the case of the petitioner as that of further inquiry; that the story narrated in the F.I.R. Does not seem to be probable; that uptill now dead-body of the deceased has not beenrecovered; that before getting the case registered, Nathu Khan complainant had submitted an application before the Sub- Divisional Police Officer Tehsil Rojhan in which his version was quite contrary to the one on the basis of which the present case had been registered; that during the investigation at one stage both the petitioners were found innocent. On the dint of said submissions, he has claimed that a case of further inquiry has been made out in favor of the petitioners entitling them to the grant of post- arrest bail.
4. Conversely, the learned counsel for the State assisted by the learned counsel for the complainant has opposed the bail application by contending that the petitioners are named in the F.I.R.; that the petitioners remained fugitive from law, therefore, they are not entitled to bail; that charge has already been framed and the case is fixed for the prosecution evidence and at this stage deeper appreciation of the evidence would not be advisable. It has been further contended that the petitioners are not persons of clean antecedents as they are previously also involved in criminal cases.
5. After hearing the learned counsel for both the parties at length and going through the relevant record, it has been straightaway noticed that the F.I.R. Was lodged with an inordinate delay of about two months. It has been further noticed that dead-body of Maid Khan Deceased has not been recovered up till now. Therefore, without prejudicing the trial it can be safely observed at this stage that admittedly there is no medical evidence available against the petitioners. Learned counsel for the petitioners has placed on record copy of the application submitted by Nathu Khan complainant to Sub-Division Police Officer, Tehsil Rojhan. According to the said application, which was received on 28-10-2005 though the petitioners were named as accused but not in the basis of some evidence rather just on the basis of suspicion. The story narrated in the F.I.R. Was not mentioned in the said application. Rather it was alleged in the said application that all the accused had firstly sent the deceased somewhere on some pretext and thereafter he was allegedly abducted. It was further mentioned in the said application that the complainant was not aware as to whether the deceased was alive or not. Interestingly while lodging the present F.I.R. The complainant had taken a somersault and had claimed that the deceased was done to death in presence of two witnesses who after having seen the said occurrence on 18-10-2005 reported the matter to the complainant. This glaring contradiction on the part of the complainant raises many questions about the genuineness of his claim made in the F.I.R. Learned counsel for the State has candidly admitted that during investigation conducted by the S.-I./S.H.O. Of Police Station Bangla Achh, the petitioners were found innocent. Though in a subsequent investigation the petitioners had been found guilty of the offence yet benefit of doubt on the basis of contradictory opinions of police, even at bail stage, can be given to the accused. As far as the allegation that the petitioners have become fugitive from law is concerned. The perusal of the police file clearly reveals that during the investigation the petitioners had been joining the investigation but they were not arrested by the Investigating Officer holding that there was no sufficient material on the record for affecting their arrest. Subsequently, during the investigation conducted by the D.S.P. The petitioners had applied for pre-arrest bail and on the dismissal of the same they were arrested on 13-9-2006.
The record further reveals that no proceedings under sections 187/188, Cr.P.C. Were initiated against the petitioners. Therefore, it cannot be said that the petitioners remained fugitive from law.
Besides that during investigation no incriminating article had been recovered at the instance of the petitioners. As far as previous involvement of the petitioners in two criminal cases is concerned, learned counsel for the complainant has candidly admitted that they are not previous convicts.
Mere registration of cases against the petitioners in past without any conviction cannot be made a ground for refusing bail to the petitioners. As far as objection relating to start of trial is concerned, that also does not hold water inasmuch as because of start of trial, bail is normally refused to the accused on the ground of propriety while after making out a case of further inquiry, the accused becomes entitled to bail as a matter of right which cannot be denied following the principle of propriety. Reliance in this regard is placed upon the cases of Muhammad Islamil v. Muhammad Rafiq and another (PLD 1989 SC 585), Muhammad Saleem v. The State (PLD 1989 Lah. 233), Zulfiqar Ali v. The State (1987 M LD 1608) and Munir v. The State (2002 M LD 712).
6. To put in a nutshell, a case of further inquiry has been made out in favor of the petitioners and, therefore, they are entitled to bail as a matter of right. Start of the trial would not become an impediment in their way to get post-arrest bail. Consequently, application in hand is accepted and the petitioners are allowed bail subject to each one of them furnishing bail bonds in the sum of Rs,2,00,000 with two sureties each in the like amount to the satisfaction of the learned trial Court.
7. Before parting with this order, I would like to observe that the findings recorded in this order would not prejudice the trial Court in any manner whatsoever. It is further observed that in case the petitioners are found to be guilty of misuse of bail especially in the matter of causing delay in the trial, the complainant shall be well within his right to move this Court for cancellation of to the petitioners.