' ABDUL SAMI KHAN, J.---Through this petition under section 497, Cr.P.C. Shahbaz Waheed petitioner has sought bail after arrest in case F.I.R. No,620 of 2011, dated 31-10-2011 registered at Police Station amanabad, Lahore in respect of offences under sections 302/34/109, P. P C .
2. The learned counsel for the petitioner contends that the petitioner has been involved in this case by the complainant with mala fide intention and ulterior motives after joining hands with the local police. Further submits that nobody has seen the petitioner committing murder of the deceased in this case and even nobody has seen taking away the deceased by the present petitioner. Further submits that the brother-in-law of the deceased has moved an application on 2-11-2011 wherein he has nominated four accused in this case including the present petitioner. Further maintains that after eighteen days of the occurrence on 17-11-2011 the witnesses have stated that they have seen the petitioner, along with his co-accused throwing bag containing dead-body of the deceased in it. Further asserts that during the investigation of this case it transpired that co-accused Mst.
Nasreen Bibi wife of the deceased had illicit liason with one Muhammad Sohail co-accused of the petitioner but later on the legal heirs of the deceased had effected compromise with the wife of the deceased and that is why she had been enlarged on bail. Further submits that the role assigned to the petitioner during the investigation, is only that he has caught hold the deceased from arms whereas Muhammad Sohail co-accused has strangulated the deceased but the medical evidence does not show any abrasion on the arms of the deceased. Further submits that the petitioner is only 16 years of age and his case also attracted the provisions of Juvenile Justice System Ordinance which entails concessionary treatment in the matter of Tail.
3. On the other hand the learned Deputy Prosecutor-General after going through the record contends that from the fact and circumstances of this case it could-be presumed that the petitioner along with his co-accused has committed the murder of the deceased. It is a heinous offence in which one person has lost his life, therefore, the culprits should not go scot-free. Further maintain that two prosecution witnesses namely Ali Sher and Adeel have seen the petitioner and his co-accused throwing the bag containing deadbody of the deceased, thus, direct evidence is available against the petitioner. The offence with which the petitioner is charged falls within the prohibitory clause of section 497, Cr.P.C. Further submits that there is absolutely no mala fide on the part of the complainant to falsely implicate the petitioner in this. Case. The offence committed by the petitioner is heinous in nature which entails capital punishment of death, thus, the question of concessionary treatment to the petitioner does not lie in this case. The prosecution witnesses have so far stood by their statements made before the police under section 161, Cr.P.C. And have corroborated the story of the F.I.R. In their statements.
4. Arguments heard. Record perused.
5. This is bail after. Arrest and only tentative assessment of the material is required at this stage. .Admittedly the name of the petitioner does not figure in the F.I.R. And his name has been surfaced in this case after three days of the occurrence on 2-11-2011 when brother-in-law of the deceased has nominated him along with three other co-accused. During the investigation of this case the only role assigned to the petitioner is to the effect that he has caught hold the, deceased from arms but the Post-mortem Examination Report reflects that no injury on the arms of the deceased.
It is a case of circumstantial evidence and it is noticed by this Court that prima facie chain of circumstances so far available against the petitioner is not complete. A co-accused of the petitioner namely Mst. Nasreen Bibi, wife of the deceased with whom allegedly Muhammad Sohail co-accused had illicit relations, has already been allowed bail on the basis of a compromise arrived at between her and the legal heirs of the deceased. The worth and evidentiary value of the belated statements made by Ali Sher and Adeel after eighteen days of the occurrence, who have allegedly seen the petitioner and his co-accused throwing deadbody of the deceased, would be seen by the learned trial court at the time of trial after recording some evidence in this case. The petitioner has been arrested in connection with this' case on 23-12-2011 and for the last eight months he is behind the bars. The investigation, of this case is complete, therefore, continuous incarceration of the petitioner in jail would not serve any useful purpose at this stage.
6. For what has been discussed above the case against the petitioner falls within the ambit of further inquiry into his guilt covered by subsection (2) of section 497, Cr.P.C. This petition is allowed and the petitioner is allowed bail subject to his furnishing bail bond in the sum of Rs,1,00,000 (Rupees one hundred thousand only) with one surety in the like amount to the satisfaction of the learned trial Court/ Area Magistrate.
7. Before parting with this order it is, however, clarified that the observations hereinabove are just tentative in nature and the same shall not prejudice the case of either party before the learned trial Court.