Post arrest bail application in case FIR No, 1079/2008 dated 29.11.2008 offence under Section 302 PPC registered with Police Station, Saddar Jhang. District Jhang, wherein it is alleged that petitioner while armed with 7-MM rifle committed the murder of Mst. Samar Bibi, real sister of the complainant with fire arm on 29.11.2008 as he suspected the character of the deceased to be loose.
Post arrest bail application of the petitioner was dismissed by the learned Additional Sessions Judge, Jhang vide order dated 20.01.2009. Hence, this petition to this Court.
2. Learned counsel for the petitioner has submitted that petitioner has been falsely involved and submitted that the complainant who is real brother of the deceased and her mother Mst. Ghulam Bibi PW and Bashir Ahmad PW swore affidavits before the learned Additional Sessions Judge that they had not seen the occurrence and the occurrence had been committed by some unknown person who had muffled his face and they were informed about the occurrence by police subsequently and police involved the present petitioner falsely. He submitted that since all the three material PWs had filed affidavits before the learned Additional Sessions Judge and have filed affidavits before this Court as well available on record with this petition who are also present in Court in person in support of the affidavits, therefore, case against the petitioner is one of further enquiry and he is entitled to bail. In support of his content ons, learned counsel for the petitioner has referred to 1991 S.C.M.R. page 111, 1997 S.C.M.R. page 32, 2004 MLD page 1 and 2009 N.LR. page 72.
Learned counsel also submitted that even otherwise on facts as well case requires further enquiry as according to the complainant the deceased was hit with .7-MM fire on her shoulder and the fire was through and through, whereas according to the postmortem report, the shoulder has an exit wound of the fire arm which is from front side of the chest, therefore, submitted that on any count case against the petitioner requires further enquiry. Also submitted that one Amjad All cairns to be husband of the deceased subsequently appeared on the scene with filing of a private complaint before learned Additional Sessions Judge in which the petitioner has been summoned and submitted that the story given in the private complaint is in contradiction with the FIR, therefore, as well being a case of two versions, petitioners case requires further enquiry. He also submitted that the FIR is totally silent about the presence of Amjad Ali in the house of the complainant of the state case/FIR, whereas Amjad All private complainant claims to be present in the house of the complaint on the fateful day at the relevant time and submitted that even in the private complaint, provisions of Section 91 Cr.P.C. simply require the filing of bail bonds by the accused to the satisfaction of trial Court. He, therefore, submitted that petitioner is entitled to bail.
3. Learned Deputy Prosecutor General assisted by learned counsel for Amjad Ali has opposed the bail application and the learned counsel for Amjad Ali has submitted that in the private complaint filed by him process has been issued, accused have been summoned and Amjad Ali was an eye- witness of the occurrence as well while the maker of the FIR along with the PWs of the FIR has entered into compromise with the petitioner, therefore, said affidavits. He submitted that a young girl, wife of Amjad Ali has been murdered simply because she had married Amjad Ali out of her free will without the blessings of the parents, therefore, submitted that the petitioner is not entitled to bail.
4. Arguments heard. Record perused.
5. The maker of the FIR/complainant Rehmat Ullah is the real brother of the deceased along with Ghulam Bibi, mother of the deceased as alleged eye-witnesses of the occurrence of murder of the deceased other than Basheer Ahmad, another PW. They have all filed affidavits and they denied the participation of the petitioner in the commission of the offence of murder of deceased which according to them had been committed by some unknown person at the instance of Amjad Ali and they were informed later on and made complainant and PWs in the FIR, by the police. Amjad Ali who claims to be husband of the deceased had filed private complaint against the petitioner in which petitioner has been summoned is not mentioned in the FIR as an eye-witness of the occurrence, though in the private complaint he claims to have witnessed the occurrence, if the contents of the private complaint are taken to be correct, then it is not understandable why Rehmat Ullah PW-maker of FIR did not mention in the FIR that Amjad Ali was also present in his deceased and Amjad Ali who allegedly had married each other without house and had been invited by him for meals after compromise with the blessings of the parents of the deceased. The prosecution case viewed from any angle in the context of the above said position makes the case against the petitioner requiring further enquiry. In the case of Syed Abdul Baqi Shah Vs. The State (1997 SCMR page 32), it was held by the C Hon'ble Supreme Court that tentative assessment of ocular and medical evidence disclosing a conflict between the two would entitle the accused to benefit of bail. In the case of Muhammad Nawaz alias Najja Vs. The State reported in 1999 SCMR page 111, it was held by the Hon'ble Supreme Court that prosecution witnesses appeared in the Court with affidavits in support of the accused that he was not implicated in the case/occurrence and as such was entitled to bail. It was also held in case of Aurang Zaib Vs. The State, (2004 MLD page 1) by this Court that all the eye-witnesses including the complainant who was father of the deceased had exonerated the accused from the commission of the offence, therefore, it was held that it was a case of further enquiry and bail was allowed. In the present case as well, since similar situation prevails as all the- PWs of the FIR are present before me with their affidavits and had also appeared before the learned Sessions Judge/trial Court with said affidavits, therefore, case law on the subject being identical on facts and law entitle the petitioner to claim bail. This petition is, therefore, accepted and petitioner is allowed bail in the sum of Rs, 100,000/- with one surety in the