Dr. Khurshid Iqbal, J.-
1. Petitioner (Shahid Khan) seeks his release on bail in case FIR No.37, dated 23.04.2023, under section 302/311/109 PPC read with 15-AA, registered at Police Station Talash, Dir Lower.
2. Facts shortly are that on 23.04.2023 at 18:55 hours, Rafiq Khan ASHO received that a woman has been killed on the pretext of honour and her dead body was lying in the fields situated at Naway Kalay. In response, he, alongwith a police contingent immediately rushed to the spot where the dead body was found. Her name surfaced to be Mst. Azra Bibi wife of Ibrahim resident of Naway Kalay. Upon inquiry, it was unearthed that the deceased had illicit relations with one Gohar. On the day of the occurrence, she had gone with him in a motorcar and on her return, she was killed in the way on the pretext of honour by her brothers-in-law--Shahid and Amjad. The ASHO, thus, booked them in the FIR on 23.04.2023.
3. On 29.04.2023, brothers of the deceasedAjab Khan and Dawa Khan--as well as mother of the deceased--IVIst. Bakht Zahira--recorded their respective statements under section 164 Cr.P.C, wherein they charged both the above named accused for the death of the deceased on the pretext of honour. They further added that the accused were instigated by their father Khan Muhammad to do away with the life of the deceased.
4. On 20.05.2023, Mst. Uzma Bibi, daughter of the deceased, recorded her statement under section 164 Cr.P.C. She stated in her statement that the deceased was in illicit relation with Gohar and it was he who committed her death. She categorically stated that the accused--Amjad, Shahid and Khan Muhammad--are innocent and were booked by the police on the basis of suspicion.
5. Arguments heard. Record perused.
6. Record shows that there is no eye witness of the occurrence. The complainant has charged the petitioner on the basis of hearsay evidence which has no evidential worth in the eyes of law. The statements under section 164 Cr.P.0 by the brothers and mother of the deceased were recorded at a belated stage. They have not disclosed in their statements the source of satisfaction regarding the complicity of the petitioner in the death of the deceased. They also charged the father of the petitioner for abetment and from the facts and circumstances, it appears that the net was thrown wide. In these circumstances, no explicit reliance could be placed upon it at the moment. In Ahmed Syed and 02 others v. The State (2018 YLR Note 208), the Gilgit-Baltistan Chief Court in somewhat similar circumstances, while allowing bail to an accused, held: The FIR lodger is not an eye witness of the occurrence and it is not mentioned in the FIR that from whom the complainant derived the information of occurrence. The complainant submitted a written application for registration of FIR and it is very clearly mentioned in the FIR that the firing was opened by accused Malook, Yageen Khan, Syed Alam and Rahimullah and one mufflered person. Whereas one Alam (Adam) son of Nakil, Seritham and Sher Syed were charged under section 109 PPC for abetment. It is astonishing to note that police got recovered a fire shot rifle from Adam Khan son of Nakil on 14.03.2017 and registered a separate FIR No.09/2017 against him.
Whereas per contents of FIR he was charged for abetment under section 109 PPC, which shows that the complainant has thrown a wide net and involved maximum persons of his rival group.
7. The daughter of the deceased--Mst. Azma Bibi--appeared before the Court of Maga Judicial Magistrate on 20.05.2023 where she recorded her statement under section 164 Cr.P.C. In her statement, she categorically stated that the petitioner is innocent and has falsely been nominated in the case in hand. She has also filed an affidavit to this effect. In addition to all this, there is no shred of direct evidence available on the record to reasonably connect the petitioner with the offence alleged against him. Co-accused Amjad All to whom similar role was attributed, has been found innocent during the course of investigation. His name is placed in the column # 2 of the challan. This aspect is yet another circumstance which raises an eyebrow qua the veracity of the complainant. The attending circumstances of the present case create reasonable doubt qua the involvement of the petitioner in the death of the deceased. There is an established judicial opinion that the benefit of doubt shall go to the accused person even at bail stage. A glimpse of this principle can well be seen in Muhammad Faisal v. The State and another (2020 SCMR 971) and Nageeb Ullah and 02 others v. The State (2023 YLR 162 (Balochistan).
8. Though, the weapon of offence is shown recovered from the petitioner. It was sent to the FSL where a report was tendered in positive. As stated above, there is no direct evidence available on the record. The daughter of the deceased has expressly stated that the petitioner is innocent. The statements under section 164 Cr.P.C were recorded at a belated stage by the brothers and mother of the deceased. The delay caused in recording the statements was not explained. Even no source of satisfaction was disclosed in the statements either. Those are contradictory to the allegations contained in the FIR. Moreover, the prosecution is yet to prove the factum of recovery and the chain of safe custody against the petitioner. In the peculiar facts and circumstances, the mere positive report being a circumstantial evidence would hardly clog the way of bail, especially when a case of further inquiry has been made out in the context of 'reasonable doubt'. In addition to all this, the investigation is complete and the petitioner is no more required for further interrogation. Hence, no useful purpose would be served, if he is kept in jail. As held in Shabir Ahmed v. The State (2023 YLRN 35 Karachi), bail cannot be withheld as punishment and the law cannot be stretched upon in favour of the prosecution, particularly at bail stage. Moreover, the wrong caused by a mistaken relief of bail can be repaired by awarding the accused appropriate punishment in case he is found guilty at the trial. However, no satisfactory reparation could be offered to an innocent person for his unjustified incarceration at any stage of the case albeit his acquittal in the long run. Reference may be made to Asim Jahangir v. State (2020 YLR 891 Islamabad) and Naqeeb Ullah v. State (2023 YLR 162 Quetta).
9. Resultantly, the instant petition is accepted.
The petitioner shall be released on bail subject to furnishing bail bonds to the tune of Rs.1,00,000/- (rupees one hundred thousand) with two local and reliable sureties to the satisfaction of Illaqa Judicial Magistrate / MOD, who must ensure that the sureties are local, reliable and men of means.
This order is based on tentative assessment of the record. It shall have no bearing on the merits of the trial at the trial.