' The petitioner, Jamil Masih, is seeking post arrest bail in case F.I.R. No,137 of 2000 dated 18-7-2000 registered at Police Station Johar Town, Lahore for the offences under section 302/34, P.P.C., at the instance of the complainant Malik Murtaza for an occurrence in which Azra Bibi and Sabir Hussain were killed for having suffered firearm injuries and the complainant suspected that the deceased were killed by the petitioner and his wife Mst. Sharifan Bibi and one Asif. The accused Asif was declared innocent and was not arrested. It was an un-witnessed occurrence and Warrayam Masih father of Azra Bibi got recorded his statement before the police under section 161, Cr.P.C. In which he expressed his suspicion against the co-accused Faqiria Masih as the one who had killed the deceased with a fire-arm with the abetment of the petitioner and Mst. Sharifan Bibi. The nature of abetment was not disclosed.
2. The petitioner was arrested on 28-7-2000. The Additional Sessions Judge, Lahore dismissed his application for the grant of post arrest bail on 30-9-2000. The investigation is complete. All the three accused, namely, the petitioner, Mst. Sharifan Bibi and Faqiria Masih have been found guilty and challan has been submitted againt them before the Court.
3. I heard the learned counsel for the petitioner, the State and have also seen the record.
4. The perusal of the record has revealed that the statements of P.Ws. Muzaffar Khan and Shahbaz Khan were recorded under section 161, Cr.P.C. In which it is alleged by them that they heard the noise of fire and they saw leaving two persons from the scene of the crime soon after the occurrence at 11-00 p.m. In a Raksha and one of them was carrying a gun. These two P.Ws. Knew the petitioner previously but they did not name him in their statements as one of the two persons who were seen by them leaving the scene of the crime. No recovery has been effected from the petitioner. Faqiria Masih was arrested in December, 2000 and he allegedly confessed commission of the offence of murder and a 12 bore shot gun was recovered from him. The police has also taken into possession a Raksha which is alleged to be belonging to the petitioner. The P.Ws. Mst. Zarina Bibi and Shoukat Masih got recorded their statements under section 161, Cr.P.C. On 21-7-2000 in which they stated that the petitioner abetted the commission of the offence of murder committed by the co-accused Faqiria Masih. These witnesses are not witness of any conspiracy between the petitioner and Faqiria Masih and they merely suspected that the petitioner was part of conspiracy which was hatched by the co-accused Faqirai Masih. The prosecution case now on the strength of the material available on the record is that the murder was committed by the co-accused Faqiria Masih and the petitioner Jamil Masih is involved in the same as abettor but there is no direct evidence available on the record of the said abetment or conspiracy. The co-accused Mst.
Sharifan Bibi was granted bail by this Court (Criminal Miscellaneous No, 6935-B/2000) on 12-12- 2000.
5. It is contended by the learned counsel for the petitioner that there was a dispute between the complainant who is a landlord and the petitioner about the rent of the residential quarter and, therefore, the complainant has got the petitioner involved falsely in this un-witnessed occurrence, it is a case of no evidence against the petitioner, the entire material available on the record against the petitioner is merely suspicionn, and is based on hearsay, the petitioner and his wife Mst.
Sharifan Bibi were not present on the spot at the time of occurrence and they had gone to Raiwind to attend the burial rites of their maternal uncle and many affidavits of the persons belonging to the locality were produced in this regard before the Investigation Officer and the same are part of the record, no recovery has been effected from the petitioner and the allegation of abetment against the petitioner for having conspired with the co-accused Faqiria Masih to kill the deceased is a matter of further inquiry.
6. Learned counsel for the State has opposed the contentions and has submitted that there is sufficient material available on the record to connect the petitioner with the commission of the offence.
7. There is no direct evidence available on the record showing that the petitioner actually conspired with the co-accused Faqiria Masih to kill the deceased. The allegation of conspiracy is based on suspicion of the complainant and the P.Ws. And in the absence of any direct evidence the allegation of petitioner having conspired with the co-accused Faqiria Masih and having abetted the commission of offence of murder is a matter of further inquiry.
8. The application is, therefore, allowed and the petitioner is granted bail subject to his furnishing bail bonds in the sum of Rs,100,000 (rupees one hundred thousand only) with two sureties, in the like amount, to the satisfaction of the Sessions Judge, Lahore.