Petitioners Haq Nawaz, Nausher, Abdul Ghafoor, Mushtaq, Mansha and Jumma Khan through Crl.
Misc. No, 8954-B/2009 have sought post arrest bail in case FIR No, 223, registered under Section 364, PIC, with Police Station Kotwali, District Jhang on 21.3.2009. Later on the police have added the offence under Sections 302, 201, 148, 149, 109, PPC in the same.
2. Petitioner Muhammad Iqbal vide separate petition bearing Crl. Misc. No, 10150.B/2009 has sought for the same relief in the said case
3. As both these petitions are outcome of one and the same case, hence are being disposed of by this single order.
4. Briefly the prosecution case as per the FIR is that on 1.4.3.2009 at about 3:45 p.m. some unknown persons from near Vicky Hotel, Ayub Chowk, Jhang in two cards had abducted Ghulam Shabbir, the brother of the complainant in order to murder him.
5. The dead body of the said abductee was found later on.
6. It has been argued on behalf of petitioners Haq Nawaz and others (in Crl. Misc. 8954-B/2009) that they have been falsely roped in; that there is seven days' delay in lodging the FIR without any plausible explanation, that they are not named in the FIR; that on 28.3.2009, their names for the first time have figured in the supplementary statement of the complainant, Naik Muhammad and Rab Nawaz; that evidentiary value of such belated supplementary statements is open to serious question to be gone into at trial; that after their arrest they have undergone physical remand for full period of 14 days but still nothing was recovered from them; that the identification of the dead body of the deceased has so far not taken place; that during the investigation they have been found innocent and so were placed in Column No, 2 of the challan report; that in such circumstances, their case is open to further inquiry into their guilt; and that so far their trial in the case has not commenced.
7. On behalf of petitioner Muhammad Iqbal (in Crl. Misc. No, 10150-B/2009) almost similar contentions have been raised.
8. On the other hand learned Deputy Prosecutor General assisted by the learned counsel for the complainant has opposed these petitions on the ground that there is evidence of last seen, extra judicial confession and some recoveries against these petitioners and so they are prima facie connected with the alleged offence; that there is explanation of delay in the FIR as the application for registration of the case was made on the day of the occurrence but due to the mala fide of the police it was not registered earlier than 21.3.2009; that they have erroneously been declared innocent by the police while sufficient incriminating material is available on the record to connect them with the offence; and that the challan has been submitted in the Court and the case today is fixed there for supply of the copies as required under Section 265(C), Cr.P.C. and so it is likely to be concluded shortly but still the direction can be issued to the learned trial Court to conclude the same expeditiously instead of deciding the question of bail of the petitioners.
9. I have carefully considered the submissions made on behalf of the parties. Record perused.
10. I have found certain very conspicuous features of the case. It is, firstly that the petitioners are not named in the FIR. Secondly, that the case was registered after about seven days of the alleged incident. As regards the question of explanation in this behalf or it's plausibility or otherwise, the same is a matter, which appropriately is to be thrashed at trial and not at this stage. I, thus would avoid to make any comment on the same, lest it may be prejudicial to either of the parties at stages to come ahead in the case.
11. Thirdly, that the names of the petitioners (in Crl. Misc. No, 8954-B/2009), admittedly have figured in the supplementary statement of the complainant, Naik Muhammad and Rab Nawaz on 28.3.2009. The same, thus, was about fourteen days after the alleged incident. The name of petitioner Muhammad Iqbal (in Crl. Misc. No, 10150-B/2009) had for the first time figured in the supplementary statement of the complainant recorded on 30.5.2008. The question of evidentiary value of such belated supplementary statements can be determined at trial.
12. Fourthly, that according to the challan report, the petitioners have been found innocent in this case and their names placed in Column No, 2 of the same. Although the ipsi dixit of the police is not binding upon Court, yet it is a relevant circumstance to be taken into consideration while deciding such like question.
13. It has been argued by the prosecution's side that there is evidence on the record of last seen, extra judicial confession and some recoveries tending to connect them with the alleged offence.
14.As regards the recoveries, the same statedly is of a car, in which the deceased allegedly was taken away by the unknown persons and of some amount. The fact however in that behalf remains that these were not from any of them.
15.However in the above back ground of the case certainly the scope for further inquiry into the guilt of the petitioners is there. Their case thus is covered under sub-section (2) of Section 497 Cr.P.C.
16. Although, they have been arrested about 4/5 months ago but it is a settled law proposition in law that when case of an accused may otherwise found fit for bail, he then cannot be detained unnecessarily for a moment even. Their trial, in this case admittedly as yet, has not commenced. In these circumstances of the case, I find them entitled to bail. In this regard I rely upon the following cases:-- Nazar Hussain us. The State and another (2008 P.Cr.L.J. 1505 Lahore) Muhammad Shafique alias Rafique vs. The State (2004 P.Cr.L.J. 54 Lahore).
17. In this view of the matter, I accept both these petitions and admit all of them to bail subject to their furnishing bail bonds in the sum of Rs, 1,00,000/- each with one surety each in the like amount to the satisfaction of the learned trial Court.
18.Before parting with this order, it is hereby clarified that the above observations are tentative in nature and meant only for the disposal of the matter in hand. These shall have no bearing at all on anybody's case at trial.