' SHAHID HAMEED DAR, J.--- Seeks bail after arrest in case F.I.R. No,459, dated 5-12-2010, under section 302, P. P.0 read with 109/34\ P.P. C . (subsequently added), registered at Police Station Saddar Kamalia, District Toba Tek Singh as well as in private complaint filed by Muhammad Iqbal, real brother of the deceased lady Mst.Noor Bibi, under sections 302, 34, 109, 201 P.P.C., registered against accused Muhammad Sharif, Muhammad Hanif, Umer Sharif (petitioner) and Muhammad Razzaq.
2. Precisely the F.I.R. Case as stated by Muhammad Sharif complainant is that on return to his house on 4:12-2010, he found his wife and children present inside the house; a little while thereafter he left for the house of his brother Dr.Hanif; he returned and found his wife and son Umar Sharif (petitioner) not present at home; Umer Sharif (petitioner) returned after sometime and informed his father Muhammad Sharif (complainant) in presence of Maulvi Manzoor and Muhammad Ishaq that he had strangulated his mother Mst.Noor Bibi to death due to her objectionable character; the dead body of Mst.Noor Bibi was found from a sugarcane field.
3. Muhammad Habib, a brother of the deceased lady moved an application before the S.H.O. Police Station Saddar Kamalia alleging therein that his sister Mst.Noor Bibi was murdered by her husband Muhammad Sharif and Umer Sharif (accused); Umer Sharif had held her mother during the act of strangulation by his co-accused near a sugarcane crop. It was further alleged by the applicant that his sister was murdered on the abetment of Dr.Muhammad Hanif and Razzaq.
4. Another brother of Mst.Noor Bibi (deceased) namely Muhammad lqbal filed a private complaint about the same occurrence, under sections 302, 34, 201, 109 P.P.C. Against Muhammad Sharif and three others, including Umer Sharif (petitioner) with the allegation that Muhammad Sharif the husband of the deceased lady had throttled his wife Mst.Noor Bibi to death and Umer Sharif (petitioner) had gripped the legs of the deceased. According to the version of Muhammad Iqbal, his ill-fated sister had been done to death at the house of Muhammad Sharif accused. After fulfilment of requirement of section 202 Cr.P.C., the learned trial court summoned the respondent- accused and proceeded with the private compliant in accordance with ratio of Nur Elahi's case (PLD 1966 SC 708). Learned trial court vide order dated 14-4-2011 observed that proceedings would be conducted in the complaint case and the State case would be put up along with it.
5. Learned counsel for the petitioner submits that the case of the petitioner is at par with that of his co-accused Muhammad Sharif who had been admitted to post-arrest bail by this court vide order dated 28-4-2011; it is a case of three versions and which one is nearer to truth shall be determined by the trial court during the course of trial; Muhammad Sharif is the principal accused of this case and his admission to post-arrest bail makes the case of the petitioner one of further inquiry as envisaged by section 497(2), Cr.P.C.
6. On the other hand, learned Deputy Prosecutor-General Punjab assisted by learned counsel for the complainant opposes with the contention that petitioner according to the F.I.R. Case brutally murdered his mother by 'strangulating her; the medical evidence corroborates the above said allegation against the petitioner; notwithstanding the application of Muhammad Habib and private complaint, filed by Muhammad Iqbal, the fact remains that the petitioner is principal accused so far as the F.I.R. Case goes; the allegations contained in the complaint case and in the application moved by Muhammad Habib cannot eclipse the allegations contained in the F.I.R.
Case; the principle of consistency is not applicable to the petitioner's case; relies upon "Asif Ayub v.
The State" (2010 SCM R 1735).
7. After having heard learned counsel for the parties and perused the record, I find that Muhammad Sharif, who got lodged the F.I.R. Against his son Umer Sharif (petitioner) for committing the murder of his mother Mst.Noor Bibi was found involved in the occurrence as the Investigating Officer collected incriminating material against him during the course of investigation which included the statements of two eye-witnesses Ghulam Farid and Nawaz who categorically stated before the Investigating Officer on 5-12-2010 that they had witnessed Muhammad Sharif strangulating his wife Mst.Noor Bibi to death and he was actively assisted by his son Umer Sharif (Petitioner) who allegedly rendered his mother helpless at the relevant time of occurrence by gripping her body. To the extent of Muhammad Sharif accused the investigation ended in volte face. He however was admitted to post-arrest bail by this court vide order dated 28-4-2011 passed in Criminal Miscellaneous No,3870-B of 2011, the relevant para whereof is reproduced hereunder:-- "Admittedly, petitioner is complainant of the main F.I.R. And it is a case of three versions, one given in the F.I.R. By the petitioner, second given by Muhammad Habib, real brother of the deceased, through an application dated 5-12-2010 on the basis of which report under section 173, CT . P.C. Has been submitted against the petitioner. Third version of this occurrence is the private complaint filed on 17-1-2011 by Muhammad Iqbal, another real' brother of the deceased. Although in both the versions given by the brothers of the deceased, petitioner has been named as an accused but there are material contradictions in these two versions. In the complaint it is alleged that the place of occurrence is the house of the petitioner falling within the area of Police Station City Kamalia and that complainant along with other witnesses had seen the occurrence when they were present in the house of the petitioner at the time of occurrence, whereas in the State case set up against the petitioner on the statement of Muhammad Habib, another real brother of the deceased, it is alleged that occurrence took place in the area of Chak No,725-GB in open fields falling " within the territorial jurisdiction of Police Station Saddar Kamalia where he along with other P.Ws. Had witnessed the occurrence in the light of their motorbike. It is very strange that authors of both the versions are real brothers of the deceased and they both claim that they saw the occurrence at two different places far away from each other. In view of three divergent versions available on the record, I am of the considered view that case against the petitioner prima facie falls within the purview of subsection (2) of section 497, Cr.P.C. Being one of further inquiry into his guilt. Evidentiary value of the joint recovery of motorcycle from two accused can validly be determined by the learned trial court after recording of some evidence."
8. The investigation of this case took a sharp turn on the very first day when Habib, the brother of the deceased lady appeared before the Investigating Officer to state that matrimonial relations between his sister Mst.Noor Bibi (deceased) and her husband Muhammad Sharif were not cordial and that he along with two eyewitnesses Ghulam Farid and Nawaz, having received a telephone call from his sister, followed Muhammad Sharif and Umer Sharif (petitioner) as they took Mst. Noor Bibi with them in the darkness of the night outside her house and by reaching near a sugarcane field, they witnessed Muhammad Sharif accused strangulating Mst. Noor Bibi whereas Umer Sharif (petitioner) held her body. The statement of Muhammad Habib was supported by the alleged eye- witnesses Ghulam Farid and Nawaz. The investigation was completed by the Investigating Officer, believing the statements of above said eye-witnesses. Muhammad Habib died lateron on so his real brother Muhammad Iqbal filed a private complaint against Muhammad Sharif and three others, including the petitioner with the same allegation as mentioned hereinabove. He produced cursory evidence before the trial court under section 202, Cr.P.C. On the same line but with a difference that the occurrence of murder had been committed by the accused at their residential house. The learned trial court took up the private complaint first for trial of the accused and virtually stitched the challan case with the complaint case vide order dated 14-4-2011. The case of the petitioner, in the attending circumstances, is on better footing than that of his co-accused Muhammad Sharif, who as discussed above, had already been admitted to bail. It has been strongly argued by the learned counsel for the complainant that Muhammad Sharif had burdened the petitioner with the allegation of murder of his mother, in the F.I.R. And it could not be expected of a father to falsely implicate his real son for the charge of murder. Had the circumstances of the F.I.R. Case not undergone a massive change as noted above, the argument of learned counsel for the complainant might have gathered importance but in the changed situation, the argument of learned counsel loses relevance. The outcome of the investigation, the text of above said application moved by Muhammad Habib and the private complaint case filed by Muhammad Iqbal do not corroborate the allegation that petitioner throttled his mother. Bail should not be withheld as a matter of punishment. The equity of treatment has to be maintained amongst the accused placed in identical and similar circumstances. The petitioner's case however is on better footing. Sufficient reasons exist to believe that petitioner's case constitutes need for further inquiry as envisaged under section 497(2), Cr.P.C.; therefore, I accept this application and admit the petitioner to post-arrest bail subject to furnishing bail bonds in the sum of Rs, 1,00,000 with two sureties each in the like amount to the satisfaction of learned trial court.