' SYED SHABBAR RAZA RIZVI, J.--- The learned counsel seeks post-arrest bail of the petitioner in F.I.R.
No,69 of 2007, dated 18-2-2007 under section 302, P.P.C. Registered at Police Station Samanabad, District Lahore.
2. Briefly, according to the F.I.R, the complainant was present on the upper floor of his house whereas his younger brother Ansar Latif (deceased) was present on the ground floor. In the meanwhile somebody pressed call-bell whereupon the complainant's brother went to the main gate of the house. Suddenly complainant heard firing; he reached to the main gate and witnessed his brother in injured condition. The , complainant took,him to the Services Hospital, Lahore for treatment but on examination, the doctor pronounced Ansar Latif's death. According to the complainant some unknown persons had killed his brother. The story of the F.I.R. Was further added vide a supplementary statement on the same day i.e. 18-2-2007. According, to the supplementary statement the complainant had given an application for registration of case in the Emergency Ward of the Services Hospital, Lahore, but when he reached home he was informed by Shehryar alias Shereen and Muhammad Naeem about presence of one Suzuki Mehran car in front of his residence at the time of occurrence. The car was being driven by Haider Ali, and petitioner was also sitting in the front seat of the same vehicle. The complainant was further informed that one Sarfraz Ahmad alias Zeeshan and Malik Muhammad Ishaq were also there riding on a motor bicycle and it was Sarfraz who rang the bell; and when the deceased appeared from inside the house, he fired at him. After injuring the deceased, accused Sarfraz whisked away on the same motor bicycle and Haider Ali and petitioner also went away in the Suzuki car. Motive for the occurrence was stated to be quarrel between petitioner and deceased a few days ago.
3. The learned counsel for the petitioner contends that from the bare reading of F.I.R. It is crystal clear that name of the petitioner is not mentioned therein; no role is attributed to him whatsoever.
Even in the supplementary statement no overt act is attributed to the petitioner. Likewise no recovery was effected from the petitioner. Moreover, the complainant has also disowned the version of the supplementary statement as he has compromised with the petitioner. On the other hand, learned Deputy Prosecutor-General, Punjab, contends that in the supplementary statement name of the petitioner is mentioned; the offence falls within the prohibitory clause of section 497, Cr.P.C. At this stage, the statement of the complainant absolving the petitioner should not be given any importance to make it a ground for granting bail.
4. I have heard the learned counsel for the petitioner and the learned Deputy Prosecutor-General, Punjab. The learned counsel for the complainant has also appeared. According to him the complainant has compromised with the petitioner and according to his instructions the complainant has no objection if petitioner is granted bail.
5. It is true that offence mentioned in the F.I.R. Attracts section 302, P.P.C, which provides for capital punishment. It is also correct that at bail stage deeper appreciation of evidence is also not permissible, however, in the instant case simple reading of F.I.R. And supplementary statement makes it clear that no overt role is attributed to the petitioner of firing or causing injury to the deceased. The petitioner is shown only present in a car in which even the co-accused Sarfraz was not present who actually fired at the deceased. Under Rule 25.2 of Police Rules, 1934 arrest is not an automatic act on the part of Investigating Officer or a requirement of law after registration of a case. Article 9 of the Constitution allows deprivation of liberty only when it is required under the law.
Collective reading of Article 9 of the Constitution and Rule 25.2 of Police Rules, 1934 demand collection of some incriminating material against an accused person before effecting his arrest.
Our Courts have deprecated automatic arrest without bringing some incriminating material against the accused on the record. There is no such material against the petitioner on the police file. In this context a Full Bench judgment of this Court may be referred to i.e. PLD 2005 Lah.
470. The first person to reach at the scene of occurrence in this case was complainant himself, who has compromised with the petitioner. As submitted by the learned counsel for the petitioner, no recovery of any kind has been made from the petitioner either.
6. In view of the above and for the foregoing reasons, there are sufficient grounds for further inquiry into the guilt of the petitioner, thus, this bail application is allowed subject to petitioner's furnishing surety bond in the sum of Rs,50,000 (Rupees fifty thousand only) with two sureties each in the like amount to the satisfaction of the Trial Court or Area Magistrate.