' SHUJAAT ALI KHAN, J.---Through this petition the petitioner, Muhammad Boota, has sought post- arrest bail in private complaint filed by the complainant under sections 302, 109, 201 and 34, P.P.C. In case F.I.R. No, 556 of 1997 dated 4-12-1997 registered at Police Station City Arifwala District Pakpattan in respect of the offences under sections 302/34, P.P.C.
2. Precise allegation against the petitioner in the F.I.R. As well as in the private complaint is that he along with other co-accused committed murder of the son of the complainant namely Asad Abbas.
3. The arguments advanced by the learned counsel for the petitioner can be summarized in the words that neither in the F.I.R. Nor in the subsequent private complaint no active role was attributed to the petitioner; that earlier F.I.R. No,372 of 1997 was registered at the behest of the petitioner wherein Asad Abbas deceased of the present case was an accused; that two co-accused of the petitioner namely Liaquat Ali and Imdad Ali have already been acquitted of the charge by the learned trial Court whereas co-accused Muhammad Asghar who was convicted and sentenced to life imprisonment by the learned trial Court has come out of the jail in view of the compromise arrived at between the parties; that Ameen one of the eye-witnesses of the occurrence is confined in a jail in the Province of Sindh after having been convicted and sentenced to death on two counts in a criminal case, whereas the other two eyewitnesses namely Muhammad Sarwar and Syed Walliyat Ali Shah have not only tendered their affidavits qua the innocence of the petitioner but have also got recorded their statements on oath before the learned trial Court, therefore, there is no likelihood of the conviction of the petitioner; that complainant Mureed Hussain the other witness of the prosecution has already died; that petitioner's case is that of further inquiry; that though in the private complaint it has been shown that the petitioner caught hold of the deceased at the time of occurrence whereas in paragraph No,7 of the private complaint the same complainant referred to the statement made by the deceased before him immediately before his death wherein, the deceased did not attribute any role to the petitioner rather he only stated that the petitioner was present at that time along with the co-accused and that when the petitioner has made out a case of further inquiry, he cannot be denied bail on the ground that he remained proclaimed offender. In support of his contentions learned counsel has relied upon the cases of Qamar alias Mitho v. The State and others (PLD 2012 SC 222), Mitho Pitafi v. The State (2009 SCM R 299), Muhammad Irfan and others v. The State and others (2012 PCr.LJ 625), Ali Gul v. The State (2012 YLR 1076), Muhammad Nawaz alias Najja v. The State (1991 SCM R 111), Muhammad Hayat and others v. The State (1988 SCM R 474), Muhammad Nawaz and others v. The State (1989 PCr.LJ 1126), Ali Gul and 3 others v. The State (1986 PCr.LJ 433), Muhammad Haroon and another v. The State (1994 SCM R 2161), Afraaz Mahmood v. The State and others (2012 PCr.LJ 746) and Amir v. The State (1973 PCr.LJ 205).
4. Conversely, learned Deputy Prosecutor-General, assisted by the learned counsel for the complainant, while opposing the bail petition argues that petitioner is nominated with specific role; that the wilful and unexplained absconsion of the petitioner for fifteen years disentitles him for the grant of bail; that the petitioner is so influential that while being behind the bars he is pressurizing the prosecution witnesses as a result whereof, two of the prosecution witnesses have resiled from their earlier statements made during the trial of the case against the co-accused; that since the affidavits executed by the above named prosecution witnesses and their subsequent statements before the learned trial Court are of no help to the petitioner as the said witnesses while appearing before the learned trial Court during the trial against the co-accused fully corroborated the prosecution story; that the petitioner cannot take any premium of the compromise arrived at between the complainant and convict Muhammad Asghar; that challan has already been submitted before the Court on 28-3-2012; that the petitioner was declared guilty in the second investigation; that the case was registered pursuant to an order passed by this Court in view of the findings of the then learned District and Sessions Judge, Pakpattan upon the conclusion of the judicial inquiry; that though the complainant has died but his statement recorded during the trial of the Co-accused can be used against the petitioner; that though one of the eye-witnesses namely Muhammad Amin is detained in jail in some criminal case, however, law has provided a procedure for recording statement of such a witnesses and for that purpose the latest technique of video conference can be used; that the petitioner who remained absconder for a long period, the possibility of his absconsion again in the event he is released on bail cannot be ruled out and that a fugitive from law loses certain rights, thus, the petitioner is not entitled the grant of bail. In support of last contention the learned counsel for the complainant has referred to the cases of Muhammad Rafique v. The State (2008 SCM R 678), Muhammad Sadiq v. Sadiq and others (PLD 1985 SC 182) and Ch. Javaid Riaz v. The State (2007 PCr.LJ 1332).
5. While exercising his right of rebuttal learned counsel for the petitioner states that with a view to diminish the possibility of the petitioner to flee away from the country petitioner is ready to surrender his original passport before the learned trial Court pending trial of the case.
6. I have heard the learned counsel for the parties as well as the learned Deputy Prosecutor- General at a considerable length and have also gone through the documents appended with this petition in addition to the case law cited by the learned counsel for the parties at the bar.
7. The F.I.R. In the instant case was lodged on 4-12-1997 whereas private complaint was filed by the complainant on 10-9-1998. In the F.I.R. No active role was attributed to the petitioner whereas in paragraph No,6 of the private complaint, the complainant has alleged that at the time of occurrence the petitioner twisted the arms of the deceased as a result whereof he fell on the ground whereupon Muhammad Asghar fired shot which proved to be fatal. In the subsequent paragraph No,7, the complainant has referred to the statement made by the deceased immediately before his death. According to the said statement, co-accused Muhammad Asghar bumped off the deceased due to and abuse given by the deceased to the said Muhammad Asghar. The deceased did not attribute any role to the petitioner rather he stated that petitioner along with co-accused Liaquat Ali were present there. In this scenario, no active role has been attributed to the petitioner while the question of his vicarious liability would be determined by the learned trial Court after recording evidence of the parties.
8. Another important aspect of the matter is that two eye-witnesses namely Muhammad Sarwar and Syed Walliyat Ali Shah have not only submitted their affidavits before the learned trial Court regarding innocence of the petitioner but have also made their statements on oath B stating therein that they deposed against co-accused Muhammad Asghar during the trial due to undue influence and pressure exerted by the complainant. When the star witnesses of the prosecution are not ready to support its version, in my humble opinion prima facie there is a little chance of the conviction of the petitioner at the end of the day. Even otherwise when the prosecution witnesses have tendered affidavit in support of innocence of the petitioner, his case has become that of further inquiry. In the case of Muhammad Nawaz alias Najja v. The State (1991 SCM R 111) the Hon'ble Supreme Court while dealing somewhat similar question has inter alia held as follows:-- "The P. Ws. Have been questioned by us and they supported the averments made in their affidavits to the effect that the present petitioner Muhammad Nawaz alias Najja is not implicated in the occurrence. Mr. A.S. Hashmi, learned counsel for the State, was unable to oppose the prayer for bail, in view of the above statements. This petition is converted into an appeal. The petitioner is allowed bail in the sum of Rs, 30,000 with the two sureties in the like amount to the satisfaction of the A.C. Narowal."
9. It is also important to note over here that in the first investigation conducted by the local police the petitioner was declared innocent. The fact that he was declared guilty in the subsequent investigation conducted by the Range Crime cannot be used to refuse bail to the petitioner.
Reference in this regard can be made to the case reported as Aurang Zaib and 3 others v. The State (2009 PCr.LJ 1169) wherein this Court has laid law to the following effect:-- "Two investigations were conducted in this case according to which in first investigation petitioners were declared innocent but subsequently were declared guilty. When two investigations are at variance then no reliance can be placed on any of the investigations as nothing can be determined about the guilt or innocence of the accused persons. Admittedly, there was a family dispute between both the parties and civil litigation was also pending, therefore, mala fides on the part of the complainant against the petitioners are quite evident."
10. Though the learned counsel for the complainant states that the challan has already been submitted before the learned trial Court but on court's query he has candidly conceded the trial has not yet commenced. In this situation, the conclusion of the trial is not in sight.
11. Insofar as the contention of the learned counsel for the complainant that the statement of the complainant recorded during the course of trial against the co-accused can be used against the present petitioner is concerned suffice it to observe that it would be seen by the learned trial Court as to whether the same can be used against the petitioner or not especially when the same was recorded in absence of the petitioner and he was not afforded an opportunity to cross-examine the said witness. Likewise, the use of alternate modes for recording of statement of Muhammad Amin one of the prosecution witnesses who is at present detained in jail would be seen by the learned trial Court at the relevant time. Even otherwise if an accused succeeds to establish that his case falls under section 497(2), Cr.P.C., he cannot be refused bail mere on account of commencement of trial. Reliance in this regard is placed on the cases reported as Afraz Mehmood v. The State and others (2012 PCr.LJ 746) wherein it has been held by Islamabad High Court as under:-- "It has been held time and again by the Superior Courts that commencement of trial does not come in the way of exercising discretion, to grant bail when any accused person successfully been able to bring his case within the ambit of further enquiry. Reliance in this regard is being placed on the case of Muhammad Ismail v. Muhammad Rafiq and another, reported as PLD 1989 SC 585"
12. Now coming to the most pivotal question of absconsion of the petitioner I am of the view that when he has made out a case of further inquiry, he cannot be denied bail on the ground that he remained fugitive from law for a considerable period. In the matter of Qamar alias Mitho v. The State and others (PLD 2012 SC 222) the Hon'ble .Supreme Court has ruled as under:-- "It has vehemently been argued by the learned Additional Prosecutor-General, Punjab appearing for the State that the petitioner had remained a Proclaimed Offender for a period of about four years and, thus, he is not entitled to any indulgence in the smatter of bail. We have, however, not felt persuaded to agree with the learned Additional Prosecutor-General in this regard. It has already been held by this Court in the cases of Ibrahim v. Hayat Gul and others (1985 SCMR 382) and Muhammad Sadiq v. Sadiq and others (PLD 1985 SC 182) that in a case calling for further inquiry into the guilt of an accused person bail is to be allowed to him as of right and such right cannot be refused to him merely on account of his alleged abscondance which is a factor relevant only to propriety."
13. For what has been discussed above, I am of the view that the petitioner has successfully made out a case of further inquiry within the purview of section 497(2), Cr.P.C. Consequently, the instant bail petition is allowed and the petitioner is admitted to bail subject to surrendering his original passport before the learned trial Court in addition to furnishing bail bonds in the sum of Rs,5,00,000 (rupees five hundred thousand only) with two sureties in the like amount to the satisfaction of learned trial Court.