' Petitioner has been refused post-arrest bail in a case registered vide F.I.R. No. 178 of 2003 under sections 302, 458, 380, P.P.C. With Police Station Saddar, Khanpur, by the learned Additional Sessions Judge, Khanpur, vide his order dated 14-1-2004.
2. Gravament of the charge as it appears from the F.I.R. Is that Noor Muhammad complainant reported that on 25-4-2003 at 11.45 p.m. Having heard the noise of two fires got up alongwith his son Muhammad Qasim, but in the meanwhile Mst. Razia Bibi daughter of the complainant saw someone on the outer side of northern wall of the house who made a lalkara and fired a short which hit Mst. Razia Bibi ca her right side of the head. Mst. Razia Bibi succumbed to the injury incidentally. It has been mentioned in the F.I.R. That complainant and his son Muhammad Qasim alongwith Fida Hussain son of Khan Muhammad and others inhabitants of the village saw three unknown. Persons going alongwith the goats owned by the complainant's neighbour.
3. Learned counsel for the petitioner submits that petitioner has not been named in the F.I.R. And the complainant only expressed his doubt regarding his involvement while making his supplementary statement. He further submits that there is no direct incriminating evidence against the petitioner connecting him with the alleged offence. He also submits that no identification parade was held after arrest of the petitioner and thus it cannot be said that petitioner committed the offence. He further elaborated his arguments by saying that the Investigating Officer (Inspector Police Station "Sadar) after due investigation recommended for discharge of the petitioner vide his report dated 20-10-2003 under section 173, Cr.P.C. But the learned Magistrate did not approve it and the police has challaned the petitioner in Column No.2. Learned counsel for the petitioner relied on the judgments in the cases of Muhammad Rafique v. The State (1997 SCM R 412), Abdul Saleem v. The State (1998 SCM R 1578) and Tahir Abbas v. The State (2003 SCM R 426) to contend that in similar circumstances bail to the falsely involved persons were granted by the Honourable Supreme Court.
4. Learned counsel appearing on behalf of the State opposed grant of bail on the ground that offence committed by the petitioner is heinous' and falls within the prohibitory clause of section 497, Cr.P.C.
5. Learned counsel for the complainant opposed grant of bail on the ground that the accused is a habitual law offender and is involved in theft of goats. He further submitted that order of the learned Illaqa Magistrate dated 21-11-2003, whereby discharge of the petitioner was not approved, shows that he was involved in the case on the basis of sufficient material with the prosecution.
6. I have considered the arguments of the parties and have examined the record, it is not disputed that the petitioner is not named in the F.I.R. He was arrested on 25-6-2003, whereafter he remained on a long physical remand, but no recovery was made from him. No identification parade, connecting the petitioner with the alleged offence was conduCted, Investigating Officer reported false involvement of the petitioner and recommended his discharge vide his report dated 20-10- 2003 prepared by him under section 173, Cr.P.C. Learned Illaqa Magistate while disagreeing with this report through his order dated 21-11-2003 had no material before him on the basis of which it could be said that petitioner was really involved in the alleged crime. Supplementary statement accusing the petitioner without any incriminating material has not worth, prima facie. There is no case pending or in which the petitioner had been convicted, of theft of goats, v as claimed by the prosecution and mere verbal assertion of his being a law offender is not sufficient to refuse him the concession of bail. Petitioner is not a history sheeter. Person of the petitioner is no more needed for investigation purposes and prosecution case will not be advanced by his further detention in a case in which he is not named. Prosecution witnesses are kith and kins of the complainant, thus there is no probability of petitioner's tampering with the prosecution evidence. Petitioner has been challaned in Column No.2 in the circumstances of this case judgment relied by the learned counsel for the petitioner in the cases of Muhammad Rafique (supra), Abdul Saleem (supra) and Tahir Abbas (supra) are directly applicable.
7. For what has been said above, I accept this petition and grant the petitioner bail in the afore- mentioned case in the sum of Rs.200,000 with two sureties each in the like amount to the satisfaction of the Trial Court.