' HASNAT AHMAD KHAN, J.---Petitioners seek post-arrest bail in case F.I.R. No,404/2006, dated 14-9- 2006 registered at police Station, Saddar Dunyapur, District Lodhran in respect of offence under section. 302/34, P.P.C.
2. Shorn of unnecessary details the prosecution story as unfurled in the F.I.R. Lodged at the instance of Mst. Hajan Puran is that on 14-9-2006 his son Abdullah went for easing himself at about 12- midnight but he did not return back. At about 1.00 a. m the complainant along with Abdul Hameed, Muhammad Wakil and Sardar Ali, reportedly, set off in search of Abdullah. After reaching near the Dera of Abdul Jabbar Dogar they allegedly heard the commotion and saw in the light of lamp of heaven and that of torch Gulzar, Nisar and Muhammad Ahmad accused armed with hatchets having caught hold of Abdullah and Mst. Zenab. All the accused allegedly inflicted blow after blow of hatchets to Abdullah which landed on different parts of his person. He reportedly fell down but even then the accused inflicted hatchet blows to him. Thereafter all the accused injured Zenab Bibi after inflicting hatchet blows on different parts of her body. Whereafter all the accused showed a good pair of heels. Abdullah and Zenab Bibi kicked the bucket at the spot. The apple of discord was stated to be illicit relations between Abdullah and Zenab Bibi deceased. Hence the F.I.R.
3. It is second petition for post-arrest bail first was dismissed as withdrawn by this Court vide order dated 6-6-2007 passed in Crl. Misc. No 1128-B/2007. As the previous application was not decided on merits, therefore there is no impediment to decide the application in hand on merits. Reliance in this regard is placed on the case of Muhammad Riaz v. The State (2002 SCMR 184).
4. In support of this petition learned counsel for the petitioners has ,contended that in fact it was an occurrence of blind murders; that eye-witnesses had not seen the occurrence, that in fact only Nisar accused, who is brother of Zenab Bibi had murdered both the deceased after finding them while performing indecent acts; that in the four successive investigations conducted by Ali Sher, S.- I. S.H.O. Police Station Duniyapur, Malik Tahir Majeed Inspector/S.H.O., Malik Nazar Abbas, D.S.P./S.D.O., Lodhran and Shaukat Murtaza Malhi D.S.P. (Investigation) Lodhran, both the petitioners were found innocent and at one stage report for their discharge was sent by the police which however was not acceded to; that no recovery was effected from the accused that as a case of further inquiry has been made out, therefore, the start of trial would not debar the petitioners from getting the bail. While concluding his arguments learned counsel has placed reliance upon the cases of Ibrahim v. Hayat Gul and others (1985 SCMR 382) Muhammad Sadiq v. Sadiq and others (PLD 1985 SC 182), Ghulam Rasul v. The State and 4 others (1982 SCMR 440), Muhammad Shabbir v.
The State (1997 PCr.LJ 1570) and Nazar Hussain Shah and another v. The State (2007 PCr.LJ 1274) .
5. Conversely learned Deputy Prosecutor General assisted by the learned counsel for the complainant has strenuously opposed the bail application on the ground that the petitioners were named in the F.I.R. And there is sufficient material on the record to connect the petitioners with the- alleged crime.
6. After hearing the arguments of both the sides I have noticed certain peculiar facts of the case, viz, it was a night time occurrence which was allegedly witnessed by the complainant and other eye-witnesses in the light of moon and a A torch. It is admitted fact that Abdullah and Mst. Zenab Bibi were murdered after having been found together. In the background of the motive of occurrence as stated by the complainant possibility cannot be ruled out that both of them were murdered under sudden and grave provocation. It is also an admitted position that in all four successive investigations both the petitioners were found innocent and it was opined by the Investigating Officer that murder was committed only by Nisar co-accused real brother of Mst.
Zeenat Bibi deceased. A report for discharge of both the accused was submitted by the police but the same was not acceded to by the learned Magistrate. It is true that ipsi dixit of the police is not binding on the Courts but for the purposes of bail the same can be considered by the Courts. For accepting or rejecting the opinion of the police a litmus test as provided by the superior. Courts 4s to see as to whether the same is based upon sound material. For making tentative assessment of the facts of the case for the decision of this bail application, I have examined the case from two angles. First being as to whether numerous injuries could be caused to both the deceased by one reason and the second is whether there was sound material before the police to hold both the petitioners innocent. As far as first point is concerned subject to final decision of the case after conclusion of the trial I am of the tentative opinion that the plea that sharp-edged injuries were inflicted by Nisar co-accused single handedly prima facie, appears to be economical with truth.
Possibility cannot be ruled out that assailants in this case were more than one person. As far as material for holding both the petitioners is concerned, I have concluded that as far as Muhammad Ahmad petitioner is concerned, prima facie, there was sufficient material in the shape of affidavits of witnesses who supported his plea of alibi. As far as Gulzar petitioner is concerned, the defence plea is that he was very much available in his house where according to defence Zenab Bibi had administered some intoxicating material due to which he (Gulzar) was enjoying deep and A sound sleep, does not appear to be so sound which can be made basis for grant of bail at this stage, especially when place of occurrence is situated quite near to the said house.
7. The net result of all the discussion made above is that as far as Muhammad Ahmad petitioner is concerned, according to me a case of further inquiry into his guilt has been made out, therefore, start of trial would not cause any hindrance for granting bail to him. After coming to the conclusion that his case requires further inquiry he has become entitled to bail as a matter of right, therefore, he cannot be deprived of the benefit of said finding on the basis of rule of propriety which demands that after start of trial bail should not normally be allowed to the accused . Reliance in this regard is placed upon the case of Muhammad Ismaeel v. Muhammad Rafiq and another (PLD 1989 SC 585), Muhammad Umar v. The State and another (PLD 2004 SC 477), Munir v. State (2002 MLD 712) and Muhammad Saleem v. The State (PLD 1989 Lah 233). Besides he is suffering pre-trial punishment since 7-10-2006. The case-law cited by the learned counsel for the petitioner is fully attracted to the facts and circumstances of the case, as far as case of Muhammad Ahmad petitioner is concerned.
8. For what has been discussed 'above present petition to the extent, of Gulzar petitioner, is hereby dismissed, while the same is allowed to the extent of Muhammad Ahmad petitioner and concession of post-arrest bail is granted to him subject to his furnishing bail bonds in the sum of Rs,2,00,000 (Rupees two lac) with two sureties each in the like amount to the satisfaction of the learned trial Court.