The petitioner who is charged in a case registered against him under section 302, P.P.C. Vide F.I.R.
No.750, dated 29-9-2001 Police Station City Haripur for having committed the murder of Rashid Khan deceased, when failed to get the concession of bail from the lower forums, asked therefore, by moving this Court.
2. The learned counsel appearing on behalf of the petitioner contended that the petitioner has not been charged in the first information report; that the charge was thrown at his doorsteps on the following day of the occurrence by a person who himself was seen decamping from the scene of occurrence soon after the incident in suspicious circumstances; that the medical evidence is in conflict with ocular testimony; that the empties recovered from the spot do not match with the weapon of offence allegedly recovered at the instance of the petitioner as per report of the ballistic expert; that the very motive set up in the F.I. R. For the commission of the crime is belied by the F.I.R.
Bearing No.531 dated 12-7-2001 wherein one Aurangzeb instead of deceased Rashid has been charged for the murder of brother of the petitioner; that the supplementary statement charging the petitioner for the crime being inadmissible cannot be taken to link the petitioner with the crime and that the statement of Miskeen Nawaz alias Chirya recorded under section 164 Cr.P.C. Gain- saying his earlier statement recorded under section 161, Cr.P.C. Clearly lead to the inference that there are not sufficient grounds to reasonably connect the petitioner with the crime and that there are sufficient grounds for further enquiry as any doubt arising in case, even at bail stage, is to be conceded in favour of the accused. The learned counsel relied on the case of Tariq Bashir and others v. The State PLD 1995 SC 345.
3. On the other hand the learned counsel for the State assisted by learned counsel for the complainant contended that even 16 days' delay in recording the statements of prosecution witnesses under section 161, Cr. P. C. Cannot be construed to the detriment of the prosecution that the conflict in the ocular and medical testimony would not constitute a ground for grant of bail, that refusal of P.W. Miskeen Nawaz alias Chirya to support the prosecution version too will not justify his release bail; that mere possibility of further enquiry which exists in almost every case is no ground for treating the matter as one of under section 497(2) of tote Cr.P.C.; that the petitioner being prima-facie connected with the crime does not deserve the concession of bail especially when the charge against him flows from a person having no animus or animosity with the petitioner and that superior Courts do not grant or cancel bail in murder cases when trial is to commence within a short time. The learned counsel to support his contentions referred to Imtiaz Ahmed v. State PLD 1997 Supreme Court 545, Abdul Hayee v. State 1996 SCM R 555, Sanaullah and others v. State 1983 SCM R 15 and Muhammad Ismail v. Muhammad Rafique PLD 1989 SC 585.
4. I have gone through the record and carefully considered the submissions made by the learned counsel for the parties and perused the judgments so relied upon by them.
5. A discrete look at the F.I.R. Would reveal that no one has been charged for the murder of the deceased. What is projected by its tenor is that P.W. Muhammad Sadiq was seen decamping from the spot soon after the occurrence and that the complainant party is locked in blood-feud and criminal litigation with Akhtar Nawaz and his brothers. The picture remained hazy unless a statement was made by the said Muhammad Sadiq before police wherein he charged the petitioner as the person responsible for enacting this tragedy because according to him the petitioner suspected that the deceased conspired in the murder of his brother.
6. If the arguments of the learned counsel for the complainant are taken into account then, I am afraid, there can be no case under the sun which can be treated as one of further enquiry. If belated charge by witness who himself was seen decamping' from the spot in suspicious circumstances conflict between medical and ocular evidence negative report of ballistic expert, refusal of a witness to support the prosecution version are ignored and every reasonable doubt arising as to the participation of an accused in the crime is construed in favour of prosecution then the chapter relating to grant of bail in Criminal Procedure Code has to be considered a dead letter.
7. No doubt every passing day brings fast deterioration in the efficiency of the Investigating Agency and standards of investigation in unearthing the actual facts leading to the commission of a crime and tracking down the person behind it but it will not give a carte blanch to a Court of law to construe every doubt and strain every fact in favour of prosecution for it is none of the business of the Courts to supply omissions and supplement deficiencies in investigation.
8. Why did the P.W. Decamp from the scene of occurrence; why did he not report the incident on the same night; why should the deceased conspire in the murder of the brother of the petitioner; whether blackening and charring on all the entry wounds could be possible notwithstanding the fact that three fires were made from a distance of 15 paces; what was the occasion for the petitioner to go to the cattle-shed of Mustafa Khan; what would be the impact of the report of the ballistic report which shows that the empties recovered, from the spot do not match with the weapon of offence allegedly recovered at the instance of the petitioner and what were the circumstances which transformed a mouse into a lion over night and infused courage in the P.W.
To charge the petitioner on the following day are the questions which essentially require further enquiry.
9. It is correct that in the judgments cited by the learned counsel for the complainant bail was refused on account of a given factor in each of them but no such judgment has been brought to the notice of this Court where all these factors concurred and still bail was refused. In the case of Syed Abdul Baqi Shah v. State 1997 SCM R 32 when tentative assessm ent of ocular and medical evidence disclosed a conflict between them benefit thereof was extended to the accused even at bail stage.
10. The argument addressed by the learned counsel for the complainant on the strength of Muhammad Ismail v. Muhammad Rafique supra that it is not a practice with the superior Courts to grant or cancel bail in murder cases when the trial was to commence within a short time is undoubtedly and ingenious argument if seen out of the context of the aforesaid judgment which also provides that bail under section 497 (2) of the Cr.P.C. Cannot be withheld on the ground of practice.
11. For the reasons discussed above, I have no hesitation to hold that the case is arguable for the purposes of bail and thus necessitates further enquiry. This petition is, therefore, allowed and the petitioner is directed to be released on bail if he furnishes bail bond in the sum of Rs. Ten Lacs with twos sureties each in the like amount to the satisfaction of Judicial Magistrate, who is to ensure that the sureties are local, reliable ands men of means.