' On the last date of hearing i,e, 05.12.2016, the complainant was in attendance and she was directed to arrange her representation with a clear caution that no further adjournment would be granted and the matter shall be decided on the basis of available record. Today, neither the complainant nor her counsel is present. Therefore, this Court has left with no other option except to proceed with the matter.
2. Through this petition, Munawar Hussain alias Munawari, the petitioner, seeks post-arrest bail in case FIR No, 175/2015, dated 19.8.2015, registered with the Police Station SukhOKe, District Hafizabad, in respect of the offences under Sections 302,148,149,109, PPC.
3. As per crime report, chalked out on the information of Mst. Masooda Bibi informer, it has been alleged that on 19.8.2015, at about 5.00 a.m. She along with her son-in-law Shoukat, Safdar Hussain and Manzoor Hussain was coming back from Marwa Balochan on motorcycles, when reached opposite Primary School Dingi, the petitioners along with their co-accused emerged there; Zafar Iqbal raised lalkara to kill Shaukat Ali, whereupon, Munawar Hussain (petitioner) fired a shot hitting Shaukat Ali on his right flank, second fire of accused Nawaz hit Shaukat Ali on his right thigh and third fire of Khizar .Hayat accused on the right shin of Shaukat Ali, however, Nawaz also fired upon Shaukat Ali. Shaukat Ali succumbed to the injuries at the spot. The occurrence was witnessed by complainant, Safdar Hussain and Manzoor Hussain.
3. Arguments heard. Record perused.
4. After considering the arguments advanced by learned counsel for the petitioner as well as DPG and scanning the record it has been found that the petitioner's name is depicted in the contents of a promptly lodged FIR with the allegation of causing a fire-arm injury on the right flank of Shaukat Ali deceased. According to the post-mortem examination report of Shaukat Ali deceased, there is no injury on the right flank of deceased Shaukat Ali. Meaning thereby, there is a material contradiction in the medical and ocular account, which is fatal to the case of prosecution at this stage. Guidance is sought from Syed Khalid Hussain Shah v. The State and another (2014 SCM R 12), Muhammad Yaseen v. The State and another (2014 P.Cr.L.J. 1179) and Gul Mast v. Khasita Gul and another (2015 M LD 226).
5. As regards findings of Police Investigator regarding involvement of the petitioner in the occurrence, suffice it to say that ipsi dixit of police regarding guilt or innocence of accused could not be depended upon, as the same would be determined by trial Court on the basis of evidence, yet to be collected. Guidance is sought from Maulana Abdul Aziz v. The State (2009 SCM R 1210).
6. In the attending circumstances prima facie, prosecution has no sufficient incriminating material to connect the petitioner with the commission of alleged offence at this stage and the alleged guilt of the petitioner definitely calls for further probe or inquiry. So, the mischief sub-section (2) of Section 497, Cr.P.C. Is attracted to his case as per law laid down by the August Supreme Court of Pakistan in cases reported as Ehsan-ullah V. The State (2012 SCM R 1137).
7. The petitioner is behind the bars since his arrest. The investigation is completed and he is no more required by the police for any further investigation. He is also stated to be a previous non- convict, which has not been controverted by the other side.
8. It is also settled by the Hon'ble Supreme Court of Pakistan in the case of Zaigham Ashraf u. The State and others (2016 SCM R 18) as under:.
"9. To curtail the liberty of a person is a serious step in law, therefore, the Judges shall apply judicial mind with deep thought for reaching at a fair and proper conclusion albeit tentatively however, this exercise shall not be carried out in vacuum or in a flimsy and casual manner us that will defeat the ends of justice because if the accused charged, is ultimately acquitted at the trial then no reparation or compensation can be awarded to him for the long incarceration, as the provisions of Criminal Procedure Code and the scheme of law on the subject do not provide for such arrangements to repair the loss, caused to an accused person, detaining him in Jail without just cause and reasonable ground. Therefore, extraordinary care and caution shall be exercised by the Judges in the course of granting or refusing to grant bail to an accused person, charged for offence(s), punishable with capital punishment. The Courts are equally required to make tentative assessm ent with pure judicial approach of all the materials available on record, whether it goes in favour of the prosecution or in favour of the defence before making a decision."
9. In these circumstances of the case, I find the petitioner to be entitled for concession of post- arrest bail. I, therefore, accept this petition and petitioner is allowed post-arrest bail in the sum of Rs, 2,00,000 (Rupees two hundred thousand only) with one surety in the like amount to the satisfaction of the learned trial Court.
10. I may observe here that the above observations made in this order are tentative in nature and meant only for the disposal of the instant matter and the same shall not prejudice the mind of the learned trial Court in any manner.