ORDER MUHAMMAD AHSAN BHOON, J. - Rehmat Ullah- Butt, petitioner, through this petition, seeks post-arrest bail in case F.I.R. No. 470, dated 20.5.2008, offence under Sections 302/324/34, P.P.C, registered at Police Station Sanda, Lahore.
2. Briefly the prosecution story of-F.I.R, lodged by the complainant/deceased of present case Imran Butt is, that lie was married 9 years back with Mst. Sumaira Bibi, daughter of Rehmat Ullah Butt (accused-petitioner): Spouses remained issueless and due to the said reason the complainant and his wife often used to quarrel with each other; on 19.5.2008 at 1.45 p.m. The complainant went to the house of his in-laws, when accused Rehmat Ullah Butt, his father-in-law, Mst. Farida Taj, his mother-in-law, Mst. Sumaira Butt, his wife and Muhammad Rehan Butt, his brother-in-law were present and his father-in-law and brother-in-law abused him but the complainant insisted to take his wife alongwith him. Altercation continued for two hours and then accused Muhammad Rehan Butt and father- in-law of the complainant (petitioner) asked him to go away otherwise he would be done, to death; .Wife- of the complainant, mother-in-law and Mst. Nigh^t :Bjbi also misbehaved with him. Being annoyed::with situation:;the. Complainant came out of their house and meanwhile accused Muhammad Rehan Butt and Rehmat Ullah Butt sprinkled petrol from back side on the.
Person of the complainant and put him on fire; the complainant raised hue and cry and in the meantime his brother Irfan, Javaid Dar and parents to whom he had already informed about the situation came from Sialkot and saw the occurrence. Hence, F.I.R, was registered.
3. The learned counsel for the petitioner has argued that joint allegation of sprinkling petrol has been levelled against the petitioner as well as his co-accused and during the course of investigation nothing incriminating material surfaced against the petitioner and the petitioner was declared innocent and was placed in column No. 2 of the challan and his plea of alibi was accepted by the Investigating Officer that at the time of occurrence he was present in the mosque to offer prayer and the requirements of Section 174-A, Cr.P.C. .Had not been fulfilled, hence the F.I.R./statement of the deceased could not be treated as dying declaration against him roposition of law that bail can be granted in a case of apital charge on the plea of alibi if peculiar facts and
4. On the other hand, learned D.P.G.' has vehemently opposed the prayer for grant of bail by arguing that the petitioner is well-nominated in the promptly lodged F.I.R.; that.He has been attributed role of sprinkling petrol on the body of the deceased; that he is one of the main accused and the evidence in the shape of dying declaration alongwith evidence of PW Javed Dar and Irfan Javaid Dar is available on the file whereby he has been fully implicated in the case in question. He concedes that the petitioner was declared innocent and placed in column No. 2 of challan, however, contends that ipsi dixit of .Police is not binding upon the Court circumstances of the case so justify in favour of the grant of bail, itis over-all consideration of the case, which qualifies an accused person for the grant of bail. All factors are to be weighed and assessed, In the present case number of witnesses appeared before the I.O. Who were present alongwith petitioner to the mosque to offer prayer at the time of alleged occurrence, itwas concluded by the I.O. In his report under Section 173, Cr.P.C, that Imran Butt deceased while standing at Karamat Street sprinkled'oil upon himself of his own and so many people of the vicinity appeared before the I.O. To verify that it was a case of suicide and accordingly the I.O. Concluded so, yet he placed the petitioner is column No. 2 of the challan whereas co-accused of the petitioner Rehman Butt with same role even was not arrested by the police. The petitioner was sent fb the judicial custody as he was formally arrested on 23.5.2008 prior to preparation of report under Section 173, Cr.P.C. As far as the contention of the learned counsel for the petitioner is concerned that F.I.R./statement of the deceased cannot be considered as dying declaration, I would not like to comment upon the same at this stage because that may prejudice the case of either party as the learned Trial Court is to see the admissibility or otherwise of the F.I.R./statement of the deceased. At present it is sufficient to observe that an amendment was made by legislature in its wisdom in Code of Criminal Procedure and -Section 174-A, Cr.P.C: was inserted vide Ordinance-LXIV of 20Q1 which is re- produced below for facility of reference:- "174-A. (1) Where a person, grievously injured by burns through fire, kerosene oil, acid, chemical or by any other way, is brought to a Medical Officer on duty designed by the Provincial Government for this purpose or,-such incident is reported to the officer-in- charge of a Police Station, such Medical Officer on - duty, or, as the case may be, Officer-in-charge of the Police Station, shah immediately given intimation thereof to the nearest Magistrate. Simultaneously, the Medical Officer on duty shall record the statement of the injured person immediately on arrival so as to ascertain the circumstances and cause of the burn injuries. The statement shall also be recorded by the Magistrate in case, of injured person is still in a position to make the statement.
(2) The Medical Officer on duty, or, as the case may be, the Magistrate, before recording the statement under sub-section (1), shall satisfy himself that the injured person is not under any.
Threat or duress. The statement so recorded shall be forwarded to the Sessions Judge and also to the District Superintendent of Police and Officer-in-Charge of the Police Station, for such action as may be necessary under this Code,
(3) If the injured person is unable, for any reason, to make the statement, before the Magistrate, his statement recorded by the Medical Officer on duty under sub-section (1)'shall be sent in sealed cover to the Magistrate or the Trial Court if it is other than the Magistrate and may be accepted in evidence as a dying declaration if the injured person expires.
5. I may observe here that none of the requirements of law envisaged under Section 174-A, Cr.P.C, has been fulfilled in the case in question for recording statement of the deceased as a dying declaration.
6. For what has been discussed dbove, I am of the considered view that case of the petitioner qua his guilt is open to further inquiry and falls within the purview of subsection (2) of Section 497, Cr.P.C. Resultantly, this petition is allowed and petitioner is admitted to bail provided he furnishes bail bonds in the sum of Rs. 1,00,000/- with one surety in the like amount to the satisfaction of the learned Trial Court.
7. Any observation made above shall be tentative in nature and shall not prejudice the case of either party at the time of trial. Bail after arrest,granted.