' HASNAT AHMAD KHAN, J.--Tahir Abbas, the petitioner, by submitting this application has sought the concession of post-arrest bail in case F.I.R. No,178/08, dated 7-7-2008, registered with Police Station Ahmadpur Sial, District Jhang, in respect of offences under section 302/34, P.P.C.
2. Precisely, the prosecution's story, as unfurled in the F.I.R. Lodged by Muhammad Arif complainant, is that the petitioner along with three others, in furtherance of their common intention, while equipped with fire-arms, murdered a relative of the complainant, namely Liaquat Hussain, who was employed in Karachi Police, on the suspicion that the complainant and his aforesaid relative had got a criminal case regarding some dacoity registered against the petitioner and others at Karachi.
3. In support of this application learned counsel for the petitioner contends that Mst. Anam Zahra, real daughter of the complainant being a sui juris pubert and educated girl decided to marry the petitioner- who is her first-cousin-of her own volition, consequently she tied the matrimonial knot with the petitioner on 8-9-2007 vide duly registered Nikahnama; that since the said marriage was contracted against the wishes of the complainant, he started harassing the petitioner and his wife through the police; that the petitioner filed a Writ Petition No,5720 of 2007 at Multan Bench of this Court, which was disposed of vide order dated 5-11-2007, whereby the concerned police official was restrained from interfering in the matrimonial affairs of the petitioner and his wife; that having failed in the said design the complainant lodged a false case F.I.R. No,240/07, under section 365-B, P.P.C. With Police Station, Ahmedpur Sharqia against the petitioner for the alleged abduction of Mst.Anam Zahra; that the petitioner filed a writ petition No,11139/2007 before this Court for quashing of the said F.I.R; that Mst. Anam Zahra, the petitioner's wife appeared before this Court and categorically denied the allegation of her abduction; that consequently the said criminal case was cancelled; that the aforesaid litigation could not pacify the venom and anger of the complainant, who got another false case F.I.R. No,245/07, dated 24-11-2007 registered with Police Station, Ahmedpur Sial under sections 420/ 468/471, P.P.C. Against the petitioner; that petitioner's wife filed Writ Petition No,11815 of 2007 before this Court whereupon the second case was also cancelled; that after the cancellation of the aforesaid criminal cases the complainant with the assistance of his close relative Liaquat Hussain, the deceased, of this case, hatched a conspiracy to commit the murder of the petitioner as well as his wife; that in order to implement the said nefarious design/ plot, the aforesaid Liaquat Hussain (deceased), who was serving in Karachi police got a false case bearing F.I.R. No,79/08 registered with Police Station Tamooria, Karachi in respect of the offences under section 392/34 against unknown dacoits; that through supplementary statement the petitioner was involved in the said case malafidely whereafter Liaquat Hussain, the aforesaid cousin of the complainant, procedure a reference letter No,1466, dated 24-3-2008 to justify the raid at the house of petitioner; that the said Liaquat Hussain brought some police officers from Karachi for apprehending the petitioner; that the complainant, Liaquat Hussain (deceased) and their companions accompanied the police officers belonging to Karachi, who after getting the assistance from local police reached the place of adobe of the petitioner; that before the police party could enter into the petitioner's house the complainant along with Liaquat All and their other companions after arming with fire-arm weapons barged illegally and unlawfully into the house of the petitioner; that they tried to apprehend/abduct petitioner's wife Mst. Anam Zahra; that during the scuffle/fight which took place in the petitioner's house Liaquat Ali (deceased) received a fire- arm wound and succumbed to injuries at the spot; that during the same occurrence the petitioner's mother also sustained injuries; that during the investigation supervised by DSP/SDPO Circle Ahmedpur Sial, other prosecution story was found false and it was categorically held that Liaquat Ali was done to death by the inmates of the house in right of their self-defence; that Riaz Hussain, Tanvir Abbas and Amjad Ali, co-accused of the petitioner have already been granted bail after arrest by this Court vide order dated 15-1-2009 passed on Criminal Miscellaneous. No,10787-B of 2008; that the prosecution story is totally false and frivolous, therefore, the petitioner's case requires further enquiry. In support of his arguments learned counsel for the petitioner has placed reliance on the cases of Mitho v. The State 1978 SCMR 231, All Muhammad v. Ali Muhammad and another PLD 1996 SC 274, Muhammad Siddique v. The State PLD 1994 Lahore 129, Amir v. The State PLD 1972 SC 277 and Shakeel Ahmad v. The State 1999 MLD 679.
4. Conversely, learned D.P.G. Assisted by learned counsel for the complainant has opposed this petition vehemently by submitting that after thorough investigation a report under section 173, Cr.P.C. Has already been submitted before the learned trial Court; that the petitioner is specifically named in the F.I.R. With a specific overt act of causing a fatal injury to the deceased and that the prosecution case falls within the prohibitory clause of section 497, Cr.P.C. Therefore, the petitioner is not entitled to post-arrest bail.
5. Heard. Record perused.
6. The circumstances and the documents relied upon by the petitioner, tentatively speaking, establish that due to the Gretna Green marriage of Anam Zahra, the complainant's daughter, with the petitioner, the complainant nursed a grudge of highest degree against the petitioner, a fact which is reflected from the registration A of the cases against the petitioner at the instance of the complainant, one after the other. According to the petitioner after failing in his design to recover the physical custody of his daughter the complainant hatched a design with the active assistance of Liaquat Hussain, the deceased, who was admittedly serving as a police officer in Karachi police.
Admittedly, after the registration of a case at Temooria Police Station, Karachi, in respect of offences under section 392/34, P.P.C, the petitioner was involved in the said case on the basis of a supplementary statement of the complainant of the said case. According to the petitioner after involving him in the said case, a necessary permission was sought for nabbing the petitioner in the said case. The Investigating Officer of the said case after seeking help from the local police, conducted a raid for the arrest of the petitioner. The said circumstance is not denied by the complainant, rather it is the prosecution's own story that Karachi police had conducted a raid in order to apprehend the petitioner. According to the petitioner the case at Karachi was registered as a result of conspiracy of the complainant's relative namely Liaquat Hussain, the deceased.
However, according to the complainant the said case was genuinely registered and the police also obtained permission for the arrest of the petitioner in a bona fide manner. But, tentatively speaking, it cannot be just a co-incident that the said police contacted the complainant party who had pitched enmity with the petitioner. According to the complainant, Liaquat Hussain who is admittedly serving in Karachi as a police employee had come to visit the complainant three/four days before the occurrence. The complainant further claimed that on the day of occurrence the Karachi police had conducted a raid for the arrest of the petitioner. According to him after conducting the raid the police had returned back but the learned counsel for the complainant has failed to show that after conducting the raid the Karachi police had lodged any Rapat with the local police regarding their failure to apprehend the petitioner. The contents of the F.I.R. Tentatively speaking, are belied by the statement of Muhammad Yousaf Constable, P.S. Ahmedpur Sial and Qamar Kiani, A.S-I P.S. Temooria West Karachi and Muhammad Mukhtar, A.S-I P.S. Ahmedpur Sial.
According to the statement of Muhammad Yousaf, made during the investigation conducted by DSP/SDPO; they had reached the petitioner's place of abode to apprehend the petitioner. He further claimed that when the police party was returning after nabbing a man, some people belonging to the complainant's party entered into the petitioner's house where Liaquat Hussain-deceased was gunned down. According to the statement of Qamar Kiani, A.S-I before the police party could enter into the petitioner's house, Liaquat Hussain and Muhammad Arif entered into the said house whereafter a gunshot was heard on which according to the said A.S-I, the police party returned. He further stated that Liaqat Hussain was done to death by the firing of the inmates of the house who had apprehended him. To the similar fact, Muhammad Mukhtar, A.S-I P.S. Ahmedpur Sial, made a statement.
7. In the said circumstances the prosecutions' story calls for further enquiry C within the meaning of section 497(2), Cr.P.C. The investigation was conducted by Sarfraz Hassan, Inspector/Incharge Investigation, Police Station Ahmedpur Sial, who after recording the aforesaid statements came to the conclusion that the C prosecution's story, that Liaquat Hussain-deceased was dragged into the house of the complainant was false. He furthef claimed that the planning of conducting a raid through Karachi police was a result of a well-considered scheme, and the motive was to get the complainant's daughter recovered. He further opined that Liaquat Hussain, who was a cousin of the complainant had brought the police from Karachi in order to recover Anam Zahra in the garb of arresting the petitioner in a dacoity case registered at Karachi. In a subsequent investigation the petitioner was found guilty but the fact remains that in one investigation which was verified by a D.S.P, the prosecution's story was found to be false. It is not denied that the dead-body was recovered from the compound of the petitioner's house. It is also true that a counter-version was recorded at the instance of the petitioner's mother, however, the same was subsequently cancelled. But in the peculiar circumstances of the case, the defence plea would be requiring due consideration of the learned trial Court at the relevant time. In case of Mitho v. The State (supra) the bail was granted by the Honourable Supreme Court to an accused of murder case after holding as under:-- C D "Mr. Aftab Ahmad Akhund the learned counsel for the petitioner has contended that the petitioner had a right of private defence and he, in the right of private defence, gave blow to the deceased with kulhari. According to him, the question whether the petitioner has exceeded the right of private defence, needs further enquiry and he is entitled to be released on bail. In support of his contention, the learned counsel relied on Amir v. State (1)."
' Similarly in the case of Muhammad Siddique (supra) authored by His Lordship Mr. Justice Khalil- ur-Rehman Ramday, it was held as under: "It is a principle too well established by now that the defence plea, if any, can be considered for the purpose of grant or otherwise of bail."
' The other cases cited by the learned counsel for the petitioner are also applicable in this case.
2. Consequently, the application in hand is accepted and the petitioner is allowed bail subject to his furnishing bail bonds in the sum of Rs,5,00,000 (rupees five hundred thousand) with one surety in the like amount to the satisfaction of the learned trial Court.
3. Before parting with the order, in the peculiar circumstances of the case, I would like to direct the learned trial Court to conclude the trial of this case within three months of the receipt of this order.
In case, after his release on bail, the petitioner is found guilty of causing delay in the process of trial, the matter will be immediately reported by the trial Court to this Court for considering the recalling of bail granted order passed in favour of the petitioner.