1. ' On the statement of Muhammad Amin while in injured condition at Civil Hospital, Rahimyar Khan, made before Muhammad Shafi, A.S.-I., Police Station Saddar, Sadiqabad, a case F.I.R. No, 107/95 was registered on 12-5-1995 under section 324/34, P.P.C. Which was later converted into section 302/324/34, P.P.C. Consequent upon the death of Muhammad Amin the complainant.
2. The facts of the case as narrated in the F.I.R. Briefly stated are that Muhammad Amin complainant after having attended funeral ceremony of his niece was coming from Mauza Qadarabad towards his house. He was accompanied by Sarfraz and Niaz Ahmad. When they reached the land owned by Rana Tahir, the present petitioner, they were blocked by Rana Tahir armed with gun and Ashiq Hussain armed with pistol both riding motorbike. The petitioner alarmed Muhammad Amin that he would now teach him a lesson for purchasing land of his uncle, Manzoor Ahmad. Thereafter he fired at Muhammad Amin that hit him at his chest. The occurrence was witnessed by aforesaid two accompanying persons.
2. ' The petitioner after his arrest applied for bail in the Court of learned Additional Sessions Judge, Rahimyar Khan, which was dismissed on 25-9-1995, The petitioner has repeated his prayer for bail through present petition.
3. ' I have heard the learned counsel for the petitioner accused and as well the counsel for the State assisted by Nabi Bakhsh, S.-I. Who investigated the case arid have also perused the police file.
4. ' It is argued by the counsel for the petitioner that the F.I.R. In fact was not recorded at the behest of the deceased/complainant inasmuch as according to the report of the Medical. Officer attached with present bail application, Muhammad Amin deceased was admitted in male Surgical Unit No,2 on 12-5-1995, at 2-15 a.m. Who was in a very serious condition on account of gunshot injury and he succumbed to injury at 5-30 a.m. On the same day and during this period no police official had approached the doctor for permission to record statement/dying declaration of the deceased/complainant. Further argued that the deceased was a literate person and he used to sign the papers but his thumb-impression affixed below his statement recorded by the Police Officer was a device adopted to create evidence in support of a false case though the complainant had already expired before preparation of F.I.R. There was nothing on record to connect the petitioner with recovered weapon of offence as the gun allegedly used by the petitioner was admittedly recovered from Ashiq Hussain, the co-accused. The gun recovered, during the investigation was found to be a licensed gun that belonged to Muhammad Amin deceased/complainant himself. It had remained throughout a mystery as to under what circumstances the licensed gun of the deceased/complainant passed on to the petitioner before commission of offence. Further contended that according to the investigation conducted by Nabi Bakhsh, S.-I. The story narrated by Muhammad Amin deceased was found incorrect. Facts revealed during investigation were that Muhammad Amin deceased with his licensed gun had gone to the land of the petitioner to meet Mst. Sassi with whom he was carrying on illicit liaison. Ashiq Hussain co-accused present there when observed his dubious movements, he called Rana Tahir petitioner to his. Assistance. Muhammad Amin deceased and Ashiq Hussain grappled with each other and meanwhile the gun went off that hit at the chest of Muhammad Amin who fell down on the spot.
5. Rana Tahir, the petitioner and Ashiq Hussain co-accused both made good their escape. Ashiq Hussain also took away the gun of Muhammad Amin with him which was later recovered by the police. Under these circumstances according to Investigating Officer the accused persons were not held responsible for the murder of Muhammad Amin and he had submitted report to this effect to D.S.P. In charge. The matter was then entrusted to Ali Raza, S.H.O. For further probe who also endorsed the findings of Investigating Officer. It was once again scrutinized by D.S.P. Sadar, Sadiqabad who too agreed with the opinions of these two officers. Before the investigation could be concluded the matter was brought to the notice of Additional S.P. Who in turn disagreed with all the three officers and directed that the challan be sent in the Court for trial. Under the circumstances the case of prosecution is doubtful and the petitioner as such is entitled to the concession of bail. Reliance is placed on 1984 PCr.LJ 2913, 1990 PCr.LJ 529, 1987 PCr.LJ 1338.
6. ' The counsel for the State has argued that the opinion of the Investigating Officer is not binding on the Court and the accused had allegedly committed an offence punishable with death or imprisonment for life that falls within the prohibitory clause of section 497, Cr.P.C. And that the challan has been submitted in the trial Court and the case shall soon be fixed for evidence, therefore, under these circumstances the accused is not entitled to concession of bail that primarily rests in the discretion of the Court that is to be exercised sparingly in matter of heinous offence like murder.
7. ' After making assessm ent, of the facts, of the prosecution case as obtained from the record, and narrated by the counsel from both the sides which' is merely a. Tentative, provisional and exploratory for a limited purpose for consideration of a question of bail, I' am of the view that the petitioner is found entitled to concession of bail for the following reasons:--
(i) There are two conflicting versions of the incident, one narrated by the deceased complainant and the other came to light during the investigation of the case. Beside the point which one is correct, that of course, will be decided by the trial Court at a proper stage but a doubt arising out of variants in the prosecution story shall certainly lend benefit to the accused even at bail stage;
(ii) The recovery of crime weapon is not effected from the petitioner and it is effected from Ashiq Hussain, the co-accused against whom a separate case under Arms Ordinance has been registered.
(iii) It is still not known despite the investigation conducted thrice by three different police officials as to how the gun owned by the complainant-deceased himself passed on to the petitioner before the occurrence took place and it was used in commission of offence. This unique feature of the case has made it a case of further inquiry.
(iv) No doubt the petitioner has allegedly committed a heinous crime punishable with death and the offence falls within a prohibitory clause of. Section 497, Cr.P.C. But mere heinousness of offence should not stand in way of bail. As the right of person to liberty is a cherished right and deprivation of liberty is equal to conviction. When a prima facie case for grant of bail is made out, then discretion of Court is legally to be exercised in favour of grant of bail rather than to decline.
8. ' For the foregoing reasons, this petition is accepted and Rana Tahir accused in case F.I.R. No,107/95 is admitted to bail subject to furnishing of security in the sum of Rs,50,000 (fifty thousand) with two sureties each in the like amount to the satisfaction of the trial Court.