Through this petition, petitioner seeks post-arrest bail in case F.I.R. No, 69/2009 dated 20.02.2009 registered at Police Station Khangarh, under Sections 302, 148, 149, 109, P.P.C. at the instance of Allah Wasaya, complainant, Respondent No, 2.
2. Briefly allegations against the present petitioner is that a case FIR No, 67/09 dated 19.02.2009 under Section 457 PPC was registered at P.S. Khangarh wherein his son Abdul Khaliq, deceased was nominated as accused. This case was lodged against Abdul Khaliq at the instance of Mumtaz Ahmad, mentioned above. The allegation in this FIR was that the deceased of this case, namely, Abdul Khaliq entered the house of Mumtaz Ahmad with criminal intention, who was apprehended at the spot and was handed over to police of Police Station Khangarh. It is further alleged in the FIR that the complainant kept on searching for his son who met him in District Kutchery Muzaffargrah, under police custody in connection with case FIR No, 67/09 where he was told by his son Abdul Khaliq, deceased that he was abducted by four accused persons mentioned in the FIR alongwith three unknown person, who gave him merciless beating and got registered case FIR No, 67/09 against him. It is further alleged in the FIR that when it was enquired by the complainant of the present case about the physical condition of the deceased it was replied by the I.O., of the present case that Abdul Khaliq was injured and was taken to the Doctor/DHQ, Muzaffargarh for issuance of medical certificate which was issued but when he was taken to the hospital again for further treatment he succumbed to the injuries on the way. Hence, this F.I.R.
3. Petitioner applied for post-arrest bail before the learned Additional Sessions Judge, Sahiwal, who vide order dated 20.03.2010 refused to grant bail to the petitioner.
4. Learned counsel for the petitioner submits that there is a delay of two days in lodging of FIR; petitioners were arrested in another case on 18.02.2009 and the case was got registered on 20.2.2009 in which first part of the FIR story of another FIR No, 67-09 dated 19.7.2009 is narrated in which the deceased was arrested; further submits that deceased died in the custody of the police; deceased was alive on 20.02.2009 in the custody of police deceased was produced before the Medical Board on 19.02.2009 at 2:12 p.m.; all the injuries found on the body of deceased were simple in nature; further submits that in the opinion of the Medical Board no cause of death of deceased is given, which makes the case of the petitioner of further inquiry and the chemical examiner report is not received after lapse of one year whether the deceased was poisoned or not; dimension of the injuries on the body of the deceased also reveals that deceased died on account of torture of the police; the petitioner is behind the bars since 3.4.2009 there is no progress in the trial of the case; no injury is attributed to the petitioner; Dildar Bakhsh was allowed bail by this Court vide order dated 19.01.2010 and the other co-accused, namely, Mushtaq was allowed bail by the learned trial Court; further submits that no recovery was effected from the petitioner although he remained on physical remand, therefore, the petitioner is entitled to the concession of bail.
5. Conversely learned D.D.P.P. vehemently opposed the bail petition contending therein that before one eye-witness the deceased in his dying declaration implicated the petitioner; bail petition was dismissed on merit; no further ground is available, therefore, petitioner is not entitled to the concession of bail.
6. I have heard the learned counsel for the parties at length and perused the record.
7. The deceased was arrested by the police in case FIR No, 67/09 dated 19.02.2009 under Section 457 PPC whether the deceased died on account of police torture or by the actions of the petitioner and other co-accused as the deceased was in the custody of the police as it is very much doubtful that the deceased was murdered or killed on account of injuries inflicted by the petitioner and by any other co-accused. The benefit of doubt goes to the accused on bait' stage. It is observed in case titled Amir vs. The State (PLD 1972 Supreme Court 277) for purpose of bail law not to be stretched in favour of prosecution. Benefit of doubt, if any arising, must go to accused. Petitioner is behind the bars for the last more than one year, even, charge is not yet framed. Speedy trial is the right of the accused. The other co-accused Dildar and Mushtaq have been allowed bail from this Court and learned trial Court respectively. Petitioner is also entitled for the same relief. There is no likelihood of conclusion of trial in near future as after passage of one year even charge is not yet framed. It is observed in case titled Haji Muhammad Nazir vs. The State (2008 SCM R 807), Grant of bail does not mean acquittal of accused but only change of custody from Government Agencies to the Sureties, who on furnishing bonds take responsibility .to produce the accused whenever and wherever he is required to be produced. Investigation of the case is completed. Petitioner is no more required for any investigation or probe. It will not fulfill any useful purpose for keeping the petitioner behind the bar for an identified period. If the petitioner is not allowed bail till conclusion of his trial, ultimately, he is acquitted and prcsecution fails to prove its case, there will be no reparation for the period, the petitioner is incarcerated. If prosecution proves its case against the petitioner, he will be convicted. It is held by Hon'ble Supreme Court of Pakistan in case titled as Tariq Bashir vs. The State (PLD 1995 SC 34): The ultimate conviction and incarceration of a guilty person can repair the wrong caused by as mistaken relief of interim bail granted to him, but, no satisfactory reparation can be offered to an innocent man for his unjustified incarceration at any state of the case, albeit his acquittal in the long run."
8. In the light of above discussion, this petition is accepted and the petitioner is admitted to post- arrest bail subject to his furnishing bail bonds in the sum of Rs, 2,00,000/- with one surety in the like amount to the satisfaction of learned trial Court. However, observations made above are tentative in nature, will not prejudice the case of either side during the triad.