Through this petition Muhammad Younis alias Macca petitioner has sought post-arrest bail in case F.I.R. No, 508 dated 6.9.2006 registered at Police Station Gulgashat, Distt. Multan in respect of the offence under Section 302 P.P.C.
2. Shorn of unnecessary details, the prosecution story as narrated in the F.I.R. registered at the instance of Asghar Ali complainant is that on 3.92006 complainant's daughters, namely, Mst.
Sundas Bibi and Mst. Eshaa Bibi passed in front of the shop of one Khurram whereupon he while pointing out towards Mst. Sundas claimed that she was the cause of his quarrel with Allah Ditta cousin of the complainant, which took place on 30.8.2006. It was further alleged that on 4,9.2006 Mst. Sundas suddenly went missing. She was, statedly, searched out but without any success. It was also alleged that from that very day the said Khurram also disappeared. The complainant went on to allege that Muhammad Younis (petitioner) informed him that a dead body packed in a sack was lying in the factory of one Haji Mushtaq whereupon he alongwith his brothers reached the said factory and on uncovering/debagging the said sack, identified the said dead body as that of his missing daughter, i,e, Mst. Sundas Bibi. The complainant-suspected that Mst. Sundas Bibi had 'been murdered by the said Khurram and consequently lodged the F.I.R.
3. During the investigation Khurram, the prime suspect of the murder was quizzed but subsequently on the move of the complainant he was let off and instead of hint the petitioner was arrested under Section 54 Cr.P.C. on 2.10.2006 (according to the police record) on suspicion of his involvement in the above-mentioned murder case. It is the case of the prosecution that Muhammad Youths petitioner was arrested on the basis of extra-judicial confession allegedly made by him on 22.9.2006 before the complainant in presence of the witnesses. Subsequently the petitioner was found guilty and challaned in this case.
4. Learned counsel for the petitioner has contended that the petitioner was not named in the F.I.R. and as a matter of fact in the F.I.R. he was named as a witness who had informed the complainant about the presence of a dead body in a factory; that Khurram accused who was originally suspected for the murder of the deceased was let off by the complainant and the petitioner was substituted only on the basis of extra-judicial confession; that in fact the petitioner was arrested on 14.9.2006 and kept in illegal custody compelling his brother Muhammad Yousaf to file a habeas corpus petition before the learned Sessions Judge Multan and on the receipt of information about the said petition formal arrest of the petitioner was shown by the police and false evidence in the shape of extra-judicial confession was created and fabricated by the police against the petitioner.
He adds that as per extra-judicial confession allegedly made by the petitioner, he had murdered Mst. Sundas (deceased) after committing rape with her but according to the report of the chemical examiner, the vaginal swa bs of the deceased were not stained with semen which makes out a case of the petitioner as one of further inquiry and, therefore, the petitioner is entitled to the grant of bail. In support of his contentions, the learned counsel has relied on Waris Muhammad vs. Haji Ahmad Yar and Another (1976 SCMR 182), Nawab and Another us. The State (1975 PCr. L.J. 1270)
Sultan Ahmad etc. vs. The State (1979 PCr. IA 26) Shakil Ahmad vs. The State (PIA 1996 Cr.C. (Lahore)
104) and Bashir Ahmad us. The State (2004 PCr. LJ 35).
5. On the other hand the learned Deputy Prosecutor General assisted by the learned counsel for the complainant has opposed the grant of the bail on the ground that there is sufficient material available on the record against the petitioner; that during investigation on the pointing out of the petitioner a pair of shoes of the deceased had been recovered from the roof of the house of the petitioner; that during the investigation the petitioner, has been found guilty and has been challaned and the case has been fixed for framing of charge, therefore, at this stage the petitioner is not entitled to the grant of bail.
6. Learned counsel for the parties have been heard in extenso and record perused with their assistance.
7. Admittedly the petitioner was not named in the F.I.R. rather he was named as the one who had informed about the presence of a dead body in the factory of one Haji Mushtaq. In the F.I.R. one Khurram had been suspected as murderer of the deceased on the basis of strong motive alleged in the F.I.R. Later on the complainant made exonerating statement before the police in favour of the said Khurram and instead of him involved the petitioner on the basis of extra-judicial confession allegedly made by the petitioner before the complainant and other witnesses on 22.9.2006. It is strange that as per the version of the complainant the petitioner had made extra judicial confession before him in presence of the witnesses, yet the petitioner .was allegedly arrested- under Section 54 of the Cr.P.C. According to the complainant the petitioner had confessed that he had murdered Mst. Sundas after committing rape with her, but the chemical examiner report made on the basis of the swa bs taken from the dead body of Mst. Sundas negated the allegation of rape. Thus the medical report to this extent does not support the version of the complainant.
Besides that report under Section 173 Cr.P.C. shows that on 20.9.2006 the complainant and some other prosecution witnesses had made supplementary statements whereby the petitioner was involved in this case but the petitioner allegedly made extra judicial confession on 22.9.2006.
Petitioner has placed on record a medico legal certificate dated 18.10.2006 to show that he was tortured by the police during his arrest. Be that as it may, barring the extra judicial confession, there is no other incriminating material on the record connecting the petitioner with the crime. It is established' law that when a case of further inquiry is made out the bail cannot be refused to an accused just on the ground of the start of trial. Reliance in this regard is placed on Muhammad Ismail vs. Muhammad Rafique and another (PLD 1989 SC 585) and Muhammad Saleem vs. The State (PLD 1989 Lah. 233). It is judiciously recognized principle that ultimate conviction and incarceration of a guilt person can repair the wrong caused by the mistaken relief of interim bail granted to him but damage to an innocence person caused by arresting him, though ultimately acquitted, would be always beyond repair. So whenever reasonable doubt arises regarding the participation of an accused person in the crime or about the truth/probability of the prosecution case and the evidence proposed to be produced in support of the charge the accused should not be deprived of the benefit of bail. Reliance in this regard is placed upon the case of Tariq Bashir and five others vs. The State (PLD 1995 SC 34).
8. For all the reasons stated above, I conclude that the case of the petitioner demands further probe. This petition is, therefore, accepted and the petitioner is allowed bail subject to his furnishing bail bonds in the sum of Rs, 1,00,000/- with two sureties each in the like amount to the satisfaction of the learned trial Court.
9. Before parting with this order, it is observed that the findings made in this order would not in any manner prejudice the trial which shall be concluded on the basis of the evidence produced before the learned trial Court. It is further observed that in case of mis-use of concession of bail including causing of delay in the trial, the complainant would be at liberty to move cancellation of bail granted to the petitioner. In the peculiar circumstances of the case, the learned trial Court is directed to conclude the trial expeditiously preferably within four months.