The petitioners Mst. Bushra Bibi and Muhammad Zahid through instant petition seek post arrest bail in case FIR No. 137, dated 28.03.2020, registered at P .S. Saddar Pattoki, District Kasur of fence under Sections 302/34 of PPC.
2. Arguments heard and record perused.
3. As per contents of the FIR on 27.03.2020 Mst. Bushra Bibi petitioner No. 1 called the son of the complainant, namely Ansar Ali, in her house. He went to the said house at about 08:30 p.m. Ansar Ali became sick in the house of Mst. Bushra Bibi petitioner No. 1. The said petitioner informed to the paternal cousin of the complainant, namely Mehmood that Ansar Ali was not fleeing well, who reached in the house of the above mentioned petitioner at 11:38 p.m. Mehmood and Muhammad Imran (PWs) took Ansar All to the Civil Hospital Pattoki and also informed the complainant on the telephone. Ansar Ali was referred from Civil Hospital Pattoki to Jinnah Hospital but he died on the way to the said hospital. The comp lainant further alleged that he had strong suspicion against both the petitioners, who are mother and son inter se" that they had administered some poisonous material to Ansar Ali deceased due to which he had died.
4. It is noteworthy that no motive whatsoever has been alleged in the FIR that as to why the petitioners, who are mother and son would administer poisonous material to Ansar Ali deceased. Even no motive has been alleged against the petitioners till today through any supplementary statement of the complainant. There is no eye-witness of the occurrence. The police has not recorded any statement of any witness till today , who had seen both the petitioners while administering poisonous material to Ansar Ali deceased. No crockery , cup or glass has been recovered from the house of the petitioners through which any intoxicated material was administered to Ansar Ali deceased. Although as per police record a phial and mobile phone of the deceased containing his vomiting were recovered from the house of the petitioner but the learned DPG has conceded on instructions that as per report of PFSA no poisonous material was detected in the phial recovered from the house of the petitioners. He has further conceded on instructions that vomiting material on the mobile phone of Ansar Ali deceased allegedly recovered from the house of the petitioners was also not sent to the PFSA in order to determine that as to whether the said vomiting material on mobile phone contai ned any poisonous material or not. I have also noted that the occurrence in this case took place on 27.03.2020 at 08:30 p.m. but the FIR has been lodged on 28.03.2020 at 07:00 a.m. It is next contended by learned DPG assiste d by learned counsel for the complainant there there is call data of the petitioners and the deceased which shows that on the day of occurrence the petitioners made telephone calls to the deceased but the learned DPG has conceded on instructions that no proof of ownership of the relevant SIMS in the name of the petitioners or in the name of the deceased has been collected by the Investigating Officer of this case. Under the circumstances, the evide ntiary value of the above mentioned call data shall be determined by the learned trail Court after recording of evidence. Reliance in this respect may be place on the case reported as "Azeem Khan and another vs. Mujahid Khan and others " (2016 SCMR 274). Although it is further argued by the learned DPG assisted by learned couns el for the complainant that as per statements of prosecution witnesses, namely Mehmood and Muhammad Imran, the deceased was lastly shifted from the house of the petitioners to the hospital, therefore, it is for the petitioners to explain the death of Ansar Ali deceased. There is no substance in the above mentioned argument of the learned DPG assisted by learned counsel for the complainant because it is by now well settled that mere recovery of dead body from the house of the accused is not sufficient to hold him guilty .
Reference in this respect may be placed on the judgments reported as "Nazir Ahmad vs. The State " (2018 SCMR 787), "Asad Khan vs. The State" (PLD 2017 Supreme Court 681), "Nazeer Ahmed vs. The State " (2016 SCMR 1628 ), "Muhammad Jamshaid and another vs. The State and others" (2016 SCMR 1019 ) and "Abdul Majeed vs. The State" (2011 SCMR 941). The facts of the judgment cited by learned counsel for' the complainant reported as "Muhammad Faiz alias Bhoora vs. The State and another" (2015 SCMR 655) are distinguishable from the facts of the present case. Moreover , as per prosecution's own case, Ansar Ali was shifted alive from the house of the petitioners and his dead body was not recovered from the house of the petitioners. No poison or any other incriminating material has been recovered on the pointation of the petitioners. As mentioned earlier , prima facie , there is neither any motive, nor any other' convincing direct or circumstantial evidence available on the record against the petitioners, except the suspicion expressed by the complainant and the above mentioned weak type of circumstantial evidence which requires further probe. Keeping in view all the above mentioned facts, the prosecution case against the petitioners is one of further inquiry , therefore, the instant petition is accepted and the petitioners are admitted to post arrest bail subject to their furnishing the bail bonds in the sum of Rs. 500,000/- (Rupees five hundred thousand only) each with one surety each in the like amount to the satisfaction of the learned trial Court.
5. It is, however , clarified that if the petitioners will not cooperate during the pende ncy of their trial with the learned trial Court then the complainant shall be at liberty to file the petition for cancellation of bail. It is further clarified that the observations made in this order are tentative in nature and shall not cause any prejudice to the case of either party during the trial or at the time of final adjudication of the case.