Zubair Rashid-petitioner alongwith others stands accused in Crime report No.42 of 2000, under section 302/34, P.P.C. Read with section 13 of the West Pakistan Arms Ordinance No.XX of 1965, registered with Police station City Narowal, at the behest of one Abdul Rauf.
Facts may be briefly stated as under:-- Abdul Rauf-complainant alongwith his father-Muhammad Sadiq, Haji Muhammad Ashraf, Haji Muhammad Sarwar was available in Mosque Haq Nawaz, situate in Jillani Colony, Narowal. They all were offering Isha prayer. All of a sudden, report of a fire was heard. Muhammad Sadiq father of complainant sustained an injury at the back of his neck and fell prone complainant found three boys standing at the back of the persons, who were offering prayer. One of them was holding a pen pistol. They took to their heels leaving the pen pistol at the spot. Muhammad Sadiq succumbed to his injuries at the spot. On receipt of information, Rashid Majid, S.I. Reached at he place of occurrence, where he drew up complaint on the dictation of Abdul Rauf. None was named in the F.I.R.
3. It was indeed an uphill task for the investigator to trace out the actual offenders. Anyhow, the petitioner was arrested by the police on 14-2-2000 on the basis of Waj Takkar evidence furnished by certain 1rosecution witnesses. In addition to this, police was able to collect evidence qua extra judicial confession of the petitioner and others before Muhammad Yousaf and Mahmood Malik P.Ws. The petitioner had preferred his application for the grant of post-arrest bail before learned Sessions Judge, Narowal, which came up for hearing before a learned Additional Sessions Judge, who by virtue of his order dated 13-12-2000 declined the said relief on the basis of multifarious reasons embodied in the order itself. Now through the instant petition, he has approached this Court for the said relief.
4. Learned counsel for the petitioner in his attractive arguments to this Court has highlighted following points for consideration. He submits:-- (i)That the petitioner is not named in the F.I.R. All the witnesses were either related or friends of the complainant and that the entire evidence was fabricated to involve the petitioner falsely in this concocted case.
(ii)That the petitioner was aged 16-1/2 years at the time of occurrence and as such was entitled to be released on bail.
He submits that the points pressed into service by him are covered by the authority of decided cases:-- 1970 SCM R 30; 1983 SCM R 1001; 1996 PCr.LJ 166 and 1996 PCr.LJ 1976.
5. Conversely, learned counsel for the State assisted by learned counsel for the complainant submits that there is evidence in the form of extra---judicial confession of the petitioner and others alongwith Waj Takkar evidence of reliable witnesses; that the petitioner was above the age of 16 years and as such his case does not fall under the Proviso to subsection (1) of section 497, Cr.P.C.; and that he is responsible for Qatl-e-Amd of Muhammad Sadiq deceased as per contents of his own statement before Malik Muhammad Yousaf and Mahmood Malik P.Ws.
6. Both the sides have been heard at length. I have soberly considered contentions of both the sides. I find that omission of name of the petitioner in the First Information Report will assume great significance in this matter. The petitioner is resident of .The same locality, where the occurrence took place. He was known to the prosecution witnesses. They would have never omitted to mention his name in the First Information Report, if he was seen by them at the spot and had identified him.
Evidence in question has been' procured after many days of the occurrence. If the assailants could not be identified while still being in the mosque, then Investigating Agency was under legal obligation to have organised a Test Identification Parade, but it has not been so done. General features and complexion of the persons seen in the mosque were also not furnished to the police while still recording First Information Report or even thereafter. Witnesses of Waj Takkar evidence should have narrated all the facts before the Investigating Officer perceived through their senses.
They too failed to do anything in this direction. There are certain family disputes pending in between the two sides. Possibility of petitioner's involvement on the basis of guess, gossip, rumours or imagination, cannot be ruled out altogether. Worth and value of the whole lot of evidence is to be assessed by the trial Court after its due weightment. I am of the firm view that case of the petitioner falls within the ambit of further inquiry and I am inclined to exercise my discretion in granting bail to the petitioner, because it would mean sound discretion guided by law and not arbitrary, vague and capricious one.
7. Accordingly, I direct that the petitioner be released from custody subject to his furnishing bail bonds in the sum of Rs.1,00,000 (Rupees one lac only) with two sureties each in the like amount to the satisfaction of trial Court.
H.B.T./Z-47/L