The petitioners seek bail after arrest in case FIR No, 209, dated 09.06.2012, under Sections 302, 34, PPC (Sections 377, PPC added lateron), registered at Police Station Pindi Gheb District Attock.
2. Umer Usman, aged 07, the ill-fated son of Muhammad Usman (complainant) went missing on 07.06.2012 and about his disappearance, Rapat No, 15 was lodged at Police Station Pindi Gheb on 08.06.2012 at the instance of the complainant; a campaign for tracking down the whereabouts of the missing child was launched during the course of which, the complainant and his companions found the dead body of the missing child afloat in a well of the village. The complainant showed strong suspicions against Abdul Majeed, Bilal (petitioner), Faisal Mehmood (petitioner) and Haroon (petitioner) with the assertion that they had murdered his son. The motive alleged was that Abdul Majeed etc. were the roguish characters who teased the lads of the village with a noxious intent.
3. Prior to the registration of the FIR, Rapat No, 15 (supra) was got lodged by the complainant whereby he contended that his missing son could be found if Abdul Majeed accused was made to join the investigation as he, when contacted by the complainant had admitted to have seen a boy of seven years of age, clad in red colour clothes, weeping near his house, at night, on 07.06.2012.
4. Learned counsel for the petitioners submits that except for delayed last seen evidence, there is no other material which may connect the petitioners with the commission of offence; the petitioners' case requires further probe into their guilt, within the scope of Section 497(2) C r.P. C
5. On the other hand, learned DPG assisted by learned counsel for the complainant opposes with the contention that the allegation against the petitioners is simple and plain which is duly corroborated by the last seen evidence, rendered by six witnesses, all related to the complainant; the son of the complainant was brutally murdered by the accused after they committed sodomy upon him; the petitioners have committed a heinous offence which catches the prohibition of Section 497(1), Cr.P.C. Relies upon "Raja Fazal-ur-Rehman Vs. Muhammad Mal and another" (2010 SCM R 179), "Zaheer alias Fauji Vs. The State" (2002 P.Cr.LJ 1114) and "Sohrab and 3 others Vs. The State" (2001 P.Cr.LJ. 366).
6. After hearing learned counsel for the parties and perusing the record, it is observed that the only evidence against the petitioners is in the form of statements of a few relatives of the complainant who joined the investigation on 10.06.2012 to tender last seen evidence and that too in a dissenting manner. The complainant reported the disappearance of his ill-fated son Umer Usman to the police on 08.06.2012 through Rapat No, 15 whereby he contended that his son did not return to his house on 07.06.2012 from the village mosque for a considerable period of time whereon he started searching for him and in this process, came across his neigbour Abdul Majeed accused who told him that a child of seven years of age, wearing red attire was seen weeping by him, close to the rear wall of his house, whom he asked to go to his house. The complainant required the police to interrogate Abdul Majeed for recovery of his missing son. The subject of this report is crucial as it does not contain the names of the petitioners. So far as, story contained in the FIR is concerned, it merely shows 'strong suspicion' of the complainant against the accused-petitioners and their co- accused Abdul Majeed. The complainant instead of hinting at the last seen evidence, presented by some of his close relatives, opted to express his mere suspicions in the; FIR against the accused which reflects on the veracity of their statements, recorded on 10:06.2012. The witnesses of the last seen evidence include Jehan Khan, Tahir Mehmood and Muhammad Nisar who joined the investigation belatedly, on 10.06.2012. Besides, they did not disclose it to the complainant well in time, otherwise this crucial incriminating circumstance might have been mentioned in the FIR in categorical terms by him, but he could do nothing, except for showing his suspicions against the accused therein. The anal swa bs qua the deceased were found stained with semen by the Chemical Examiner, but, it cannot be discerned from the postmortem examination report whether the anal area of the deceased child had been examined by the medical officer or not. The detail of the occurrence is hair-raising and heart bleeds while going through it but, Courts are not driven by the sentiments. It is the incriminatory material alone, collected by the I.O. during the course of investigation which has to be tentatively assessed A for the purpose of adjudication of the bail plea of an accused. Abdul Majeed accused has already been granted bail by the learned trial Court.
The evidentiary value of the aforesaid incriminating circumstance shall be truly assessed by the learned trial Court after recording the evidence of the parties at trial. There is no other incriminating material which may connect the petitioners with the commission of offence. The facts of the judgment, relied upon by the learned counsel for the complainant do not assimilate the facts of this case. Sufficient reasons exist to believe that the petitioners' case calls for further probe into their guilt as envisaged by Section 497(2), Cr.P.C.
7. Therefore, I accept this application and admit the petitioners to post arrest bail subject to furnishing bail bonds in the sum of Rs, 2,00,000/- each with two sureties each in the like amount to the satisfaction of learned trial Court.
8. It is clarified that the observations contained hereinabove are of tentative character which shall have no bearing upon the merits of the case.