' RAJA MUHAMMAD SHAFQAT KHAN ABBASI, J.---The petitioners namely, Basharat Ali, Arif Hussain sons of Muhammad Sardar, Muhammad Irshad, Zulifqar Ali sons of Allah Rakha, Mst. Surraya Bibi wife of Muhammad Irshad and Mst. Razia Begum wife of Muhammad Tufail by filing this petition have sought pre-arrest bail in case F.I.R. No,1044, dated 30-10-2008 under section 302 read with section 109, P.P.C. Lodged by Muhammad Bloch father of the deceased with Police Station Factory Area, District, Sheikhupura.
2. As per contents of F.I.R., the daughter of complainant Mst. Shehnaz Bibi was married with Maqsood alias Bhola who passed away and after the death of her husband, my daughter demanded share of her husband in the property but the petitioners refused to do so. They forcibly got married my daughter with one Tufail in order to usurp her share in the property and on 8-8- 1997, they had caused death of his daughter Mst. Shahnaz Bibi by sprinkling kerosene oil on her body but it was shown that she died due to explosion of stove.
3. Learned counsel for the petitioners contends that a false, fabricated and concocted case has been registered against the petitioners; that the F.I.R. Has been got registered against them with a delay of 11 years and two months and that too without explaining such a delay which casts serious doubts on the veracity of prosecution story; that the instant occurrence is unseen; that the complainant Muhammad Baloch filed a Writ Petition No, 18424 of 1997 which was disposed of by this Court vide order, dated 15-8-1997 with the direction to SP Sheikhupura ito treat the said petition as complaint under section 154, Cr.P.C. And proceed further in accordance with law; that meanwhile petitioners approached the complainant and proved their innocence, which resulted into compromise between the parties and the proceedings were dropped. He further argued that as a result of compromise, 8- marlas constructed house was transferred in the names of minor sons of said deceased lady, namely, Muhammad Shakeel and Aqeel Ahmad; that the instant occurrence was accidental; that as per MLR of deceased 90% of her upper body was burnt, she was in a precarious condition and was not in a position to make statement; that alleged statement is not signed as well as thumb marked by Mst. Shehnaz Bibi deceased that involvement of the petitioners at this belated stage is tainted with mala fide; that the case has been manipulated by the complainant just to grab the property of the minors, who have attained majority.
4. Conversely, learned Deputy Prosecutor-General, Punjab assisted by learned counsel for complainant has opposed this bail petition contending that the petitioners are specifically nominated in the F.I.R. With specific role; that sufficient material is available on record, which connects them with the commission of offence; that the petitioners are asking for extraordinary relief of pre-arrest bail without any mala fide or enmity of the complainant; that the delay has been fully explained by the complainant; that mala fide of the accused is evident as they have not reported the parents of deceased about her burning; that Shakeel P.W. In his statement under section 161, Cr.P.C., dated 30-10-2008 categorically implicated the petitioners in this case; that on the direction of this Court, dated 30-10-2008, an inquiry was conducted by Superintendent of Police, Sheikhupura in which all the petitioners were held guilty. Learned counsel for the complainant contends that if compromise is effected outside the Court, the same has no value in the eyes of law. Under section 345(2), Cr.P.C. It will have no effect at bail stage. Learned counsel for the complainant has relied upon the cases of Zia-ul-Hassan v. The State (PLD 1984 SC 192), Noor Muhammad Khan v. The State (2005 PCr.LJ 1025), Muhammad Rafique and another v. Muhammad Younis and another (2005 YLR 1199) and Manzoor Ahmad and another v. The State and 2 others (PLD 2003 Lahore 739) in support of his contention.
5. I have heard the arguments of learned counsel for the parties at considerable length and have perused the record.
6. Admittedly, there is delay of 11-years and 2 months in lodging the F.I.R., which has not been plausibly explained by the complainant. After issuance of direction to the Superintendent of Police, Sheikhupura for treating the Writ Petition No,10424 of 1997 as complaint under section 154, Cr.P.C. On 15-8-1997, compromise arrived between the parties as a result whereof 8-marlas constructed house was transferred by the petitioners in the name of minor sons of the deceased through registered deed, dated 25-8-1997 has some force and substance. Affidavit dated 25-8-1997 sworn by complainant and Report No,23, dated 30-8-1997 available on the record indicate that complainant has made statement to the effect that earlier he had doubt about the death of her daughter but now he has verified that she was not done to death by her in-laws but due to burst/fire in stove. The complainant kept mum for about more than 10 years after effecting of the compromise. The mala fide of the complainant to involve the petitioners in this case to resolve some personal disputes is prima facie apparent from the aforesaid circumstances. The contention of learned counsel for the complainant that the deceased had made statement before the Doctor prior to her death relates to questions of facts, which exercise is to be done by the trial Court. As per medico legal report, dated 8-8-1997 following alleged statement of the injured was incorporated: {{URDU TEXT}} ' The alleged statement of the injured does not find mention of the names of the petitioners.
Nothing is available on the record to suggest whether the said statement was made in presence of Doctor or any other competent authority. The value of this statement will be determined at trial stage. As per affidavit sworn by Mst. Naseem Akhtar and Mst. Kubran Bibi who had taken Mst.
Shehnaz Bibi to hospital, they had denied the alleged statement of the injured. Moreover, the Investigating Officer has not associated the said Doctor with the investigation. The contention of learned counsel for the petitioners that after 8/9 years, the relations between the parties became strained on account of house which was transferred through a registered sale-deed in the name of Shakeel and Aqeel who has now attained the majority. Shakeel after attaining the majority also filed Writ Petition No, 12506 of 2008, which was dismissed by this Court on 23-9-2008 on account of laches. No appeal whatsoever has been filed against the said order. However, the complainant, maternal grandfather filed Criminal Original No,577-W-08 after 11 years of the occurrence for implementation of order, dated 15-8-1997. During hearing of Criminal Original, this Court directed Superintendent of Police, Sheikhupura to look into the matter regarding allegations mentioned in Writ Petition No,18424 of 1997 whereupon ASP, Sheikhupura after holding an inquiry recommended for registration of case. I feel bad to observe that the petitioner while filing the Criminal Original 'No,577-W-2008 has not disclosed these facts or events before the Court. It is incumbent upon lawyers to mention all material facts in the petition. Non conducting of post-mortem of the deceased, absence of direct evidence regarding involvement of the petitioners, inordinate delay of more than 11-years in lodging F.I.R, different stands taken by the complainant at different forums coupled with concealment of facts, non-recovery of incriminating material, non-assigning of specific role to the petitioners create doubts in my mind regarding the involvement of the petitioners who are paternal uncles and aunt of the minoRs, It appears to me that bone of contention between the parties is selling of share of minors in the property, which resulted into initiation of civil as well as instant criminal case which prima facie indicate the presence of element of ulterior motive on the part of the complainant. Bail before arrest can be granted when arrest is with ulterior motive D apparent on the face of record. The alleged settlement between the parties in terms of Report No,23, dated 23-8-1997 and affidavit to this effect of the complainant, dated 25-8-1997 are the relevant factors for grant of confirmation of bail. Reliance can conveniently be placed on the cases of Murad Khan v. Fazal-ur-Rehman and others (PLD 1983 SC 82), Jalal-ud-Din v. The State (1985 SCMR 1949), Miran Bakhsh v. The State (PLD 1989 SC 347), Ch. Basharat Karim v. Muhammad Ashfaq Chandoor and others (2007 SCMR 1456), . Syed Iftikhar Hussain Shah v. Syed Shabbir Hussain Shah (1988 SCMR 466) and Khalid Hussain Shah and another v. Suba and others (1999 SCMR 871). Prima facie, there is no convincing material on the record to connect the present petitioners with the commission of crime imputed against them at this stage.
Therefore, the arrest of the petitioners by the police will expose them to mental agony, disgrace and humiliation. No purpose will be served by sending them in jail after more than 11-years of the alleged occurrence.
7. Resultantly, this petition is allowed and ad interim pre-arrest bail already granted to the petitioners vide order, dated 11-2-2009 is hereby confirmed subject to their furnishing fresh bail bonds in the sum of Rs,100,000 (Rupees One lac) each with one surety each in the like amount to the satisfaction of learned trial Court.
8. It is, however, made clear here that observation made hereinabove are of tentative in nature and the learned trial Court shall not be influenced in any manner.