Petitioner Touqeer Ahmad has sought post arrest bail in terms of Section 497 Cr.P.C. In case FIR No.803 dated 14.7.2014 registered under Section 302/34 PPC at Police Station Kahna, Lahore.
2. The allegation against the petitioner is that he along with his co-accused, in furtherance of their common intention, murdered Muhammad Naveed son of Abdul Hameed nephew of the complainant.
3. Learned counsel for the petitioner has contended that the petitioner has been falsely involved in this case with malafide intention; that there is unexplained delay of 2-days in lodging the FIR; that the petitioner has been named in the FIR without disclosing source of his involvement in this case and even the complainant did not disclose the name of any witness who had seen the petitioner while taking the dead body for its disposal; that bare perusal of FIR shows that it was an unseen occurrence; that the petitioner had been involved in this case on the basis of evidence of Waj Takkar and that of extra judicial confession, which is very weak type of evidence; that the alleged recovered Rikshaw belong to one Umair and the petitioner has nothing to do with the same; that the petitioner is behind the bars and is no more required to the police for further investigation and that the case of the petitioner is one of further inquiry, therefore, he is entitled to the concession of bail. Relies on cases titled "Malik Dino and others vs. The State (2002 P.Cr.L.J. 783 [Karachi])", "Abid Ali vs. The State (2011 SCM R 161 [Supreme Court of Pakistan])", "Allah Ditta vs. The State and others (2012 SCM R 184 [Supreme Court of Pakistan])", "Sultan Mahmood vs. Mansoor Shamsi and another (2015 P.Cr.L.J. 90 [Islamabad])", "Mst. Maria Khan vs. The State and another (2013 SCM R 49 [Supreme Court of Pakistan])" AND "Talib Jan vs. The State & another (2012 PSC (Crl.) 97 [Supreme Court of Pakistan])".
4. Conversely, learned DDPP assisted by the learned counsel for the complainant has opposed this petition and it is contended that the petitioner is well nominated accused of the FIR; that the delay in lodging the FIR has been explained by the complainant; that the petitioner remained absconder and there is every possibility of his being abscondence, if released on bail; that the statement of Pervaiz PW was recorded on the same day of the registration of case and his presence at that time was natural; that the offence falls within the Prohibitory Clause of Section 497 Cr.P.C.; that the trial has commenced and the statements of two PWs have been recorded, therefore, he is not entitled to the concession of bail.
5. I have hearkened arguments of both the sides and have minutely gone through the record.
6. Allegedly, the petitioner along with his co-accused murdered Muhammad Naveed, nephew of the complainant and thereafter, he was seen by one Pervaiz PW on 14.7.2014 at about 5:00 a.m.
While taking the dead body of the deceased. Bare perusal of FIR shows that the complainant has not disclosed the name of any person, who had allegedly seen the petitioner taking the dead body of Naveed deceased and throwing the same. Astonishingly, this case was registered on 14.7.2014 at 5:30 a.m. And the statement of Muhammad Pervaiz, PW under Section 161 Cr.P.C. Was recorded on the same day but his name has not been mentioned in the FIR for the reasons best known to the complainant. The petitioner was arrested in this case on 8.10.2014 and during investigation though rickshaw and a Rassi/robe has allegedly been recovered from him yet the medical expert has not opined about the cause of death in this case. The veracity of alleged extra judicial confession made by the petitioner before Abbas and Hashim Ali PWs shall be seen by the learned trial Court after recording of evidence. According to the post mortem examination report of the deceased, the facial features were destroyed and the dead body was at the advance stage of purification and the cause of death was not opined by the medical expert. Post mortem examination has been conducted with the delay of about 29-hours after the registration of F.I.R. The investigation of this case is complete and the petitioner is no more required to the police for the said purpose. The evidentiary value of sole witness of Wajtakar and the extra judicial confession is very weak type of evidence and its value, in the absence of supporting opinion regarding the cause of death, shall be seen at the time of trial. Reliance in this case can be safely placed on "Alah Ditta vs. The State and others (2012 SCM R 184 [Supreme Court of Pakistan])".
7. It is well settled law by now that mere abscondment of an accused itself could not be used to kill each and every right of accused and the abscondment should not come in the way for refusal of bail. Reliance can be placed on case titled "Sultan Mahmood vs. Mansoor Shamsi and another (2015 P.Cr.L.J. 90 [Islamabad])".
8. The petitioner is behind the bar since his arrest i.e. 8.10.2014 and is no more required to the police for further investigation and his further detention in jail would serve no useful purpose. The petitioner has successfully made out his case being one of further inquiry, therefore, he is entitled to the concession of bail.
In view of above, the petition in hand is allowed and the petitioner is admitted to bail subject to his furnishing bail bonds in the sum of Rs.100,000/- (one lac) with two sureties in the like amount to the satisfaction of learned trial Court.