1. ' Learned counsel for the petitioners submits that injury attributed to the petitioner on the person of the deceased is not present at the place which has been specifically mentioned in the F.I.R. By the complainant, that no recovery was effected from the petitioner, that no motive is attributed to him, that even according to the report under section 173, Cr.P.C. Petitioner was not present at the spot and in fact it was Mumtaz alias Mithu co-accused, who had fired at the deceased and that case of the present petitioner is of further inquiry falling under subsection (2) of section 497, Cr.P.C.
2. ' On the -other hand, learned counsel for the State assisted by learned counsel for the complainant submits that petitioner is named in the F.I.R., specific role is attributed to him, lie has been challaned, case is fixed for evidence for 27-9-2003, charge was framed on 13-8-2003, that whether the motive is attributed to the present petitioner or not is not relevant at this stage and moreover deeper appreciation of evidence is not allowed at this stage. Learned counsel for the complainant had relied upon 1980 SCM R 203, 2002 SCM R 1381, 1996 PCr.LJ 745, PLD 1989 SC 585, 2002 PCr.LJ 394, 1985 SCM R 195, 1995 SCM R 1765 and 2000 SCMR 257.
3. ' I have heard learned counsel for the parties. The complainant in this case is Muhammad Latif and whose grand son namely, Waqas was murdered in this case. According to the F.I.R., Khurram Butt co-accused was armed with pistol .30 bore while Moeen Butt present petitioner was also armed with .30 bore pistol and the 3rd co-accused Amjad was empty-handed. It may also mentioned here, that complainant has also mentioned in the F.I.R. Two unknown persons, who were fighting with Waqas deceased. The complainant after hearing the noise of firing came to the place of occurrence and saw that Waqas deceased ran towards on his backside when Khurram Butt fired a shot with his pistol which hit on the back of left shoulder of the deceased and it also created an exit wound. As far as Moeen Butt petitioner was concerned, he thereafter, fired a shot which hit on the back of his left flank, who fell down, then, the accused persons ran away from the spot, the deceased was taken in an injured condition to the hospital, where he died. Learned counsel for the petitioner has placed on record certified copy of the post-mortem report of the deceased. Injury No,3 is a fire-arm wound but according to the post-mortem report it is on the back of the chest of the deceased. There is no injury whatsoever on the flank of the deceased and this fact either A party has not denied. Moreover, during the course of investigation, no recovery was effected from the petitioner, no motive is also attributed to him and motive if any was between Khurram Butt co- accused and Waqas deceased. It has also been mentioned, in the post-mortem report of the deceased by the doctor, who conducted post-mortem examination on the dead body of the deceased that "the relatives of the dead person who accompanied this dead body took forcefully the two (2) metallic foreign bodies recovered from the body. I immediately reported to Medical Superintendent who forwarded it to S.S.P., Gujranwala for necessary action". At this stage learned counsel for the complainant had stated that complainant had submitted an application against the said doctor and in this regard an inquiry is being held but no final result has been come on record till today.
4. ' I may also mention here that according to report under section 173, Cr.P.C., the complainant during the course of investigation gave the names of two unknown persons as Waqas son of Muhammad Saeed, who according to him was empty-handed but was present in the earlier incidence of motive, thereafter, on 29-4-2003, he gave a supplementary statement and gave the name of other accused as Mumtaz Ali son of Khalid Saeed. According to the said report Mumtaz Ali was armed with pistol, he was declared proclaimed offender while Moeen Butt and Khurram Butt and Amjad accused were already sent to judicial lock-up. Waqas accused joined the investigation but his arrest was deferred. During the course of investigation, the Motorcycle bearing No 5161/GAD 70-CC Honda which was used in the commission of offence by Mumtaz co-accused (P.O.) was also recovered on his pointation. A .30 bore pistol was also recovered from Mumtaz alias Mithu co- accused. Report further reveals that though Khurram Butt, Moeen Butt and Amjad were not present at the spot but they had brought the deceased from his house when Waqas and Mumtaz co- accused came on motorcycle, Mumtaz, was sitting on the pillion seat of the motorcycle and he fired on the person of Waqas deceased while other Waqas (co-accused) was driving the motorcycle. Report further reveals that it was not proved that Khurram Butt, Moeen Butt and Arnjad fired during the occurrence. There is not only conflict between ocular account and medical evidence but the findings of the police is also adverse to the prosecution case, so in my considered opinion, the case of the petitioner is of further inquiry falling under subsection (2) of section 497, Cr.P.C. B The statute in this regard is very much clear and it has been mentioned in subsection (2) of section 497, Cr.P.C. That if it appears to such officer or Court 'at any stage of the investigation, inquiry or trial, as the case may be, that there are not reasonable grounds for believing that the accused has committed a non-bailable offence, but that there are sufficient grounds for further inquiry, into his guilt, the accused shall, pending such inquiry, be released on bail, or at the discretion of such officer or Court, on the execution by him of a bond without sureties for his appearance as hereinafter provided". Moreover, it was not a case of first informant in the F.I.R. That it was the present petitioner, who alongwith Khurram Butt and. Amjad co-accused brought the deceased from his house.
5. ' In my considered opinion and while relying on PLD 1972 SC 81 and 277, wherein it was held by their Lordships of the Honourable Supreme Court of Pakistan in a case titled as Manzoor and 4 others v.
6. The State PLD 1972 SC 81 relevant at page 82 that it is important to remember that bail is not to be withheld as a punishment. There is no legal or moral compulsion to keep people in jail merely on the allegation that they have committed offences punishable with death or transportation, unless reasonable grounds appear to exist to disclose their complicity. The ultimate conviction and incarceration of a guilty person can repair the wrong caused by a mistaken relief of interim bail granted to him, but no satisfactory reparation can be offered to an innocent man for his unjustified incarceration at any stage of the case albeit his acquittal in the long run". It was also held by their Lordships of the Honourable Supreme Court of Pakistan in a case titled as Amir v. The State PLD 1972 SC 277 that "for purposes of bail, law not to be stretched in favor of prosecution. Benefit of doubt, if any arising must go to accused".
7. ' After having heard the leaned counsel for the parties and going through the record, '`I am of considered opinion that case of the present petitioner is of further inquiry falling under subsection
(2) of section 497, Cr.P.C., therefore, this petition is accepted. Petitioner is allowed bail subject to furnishing bail bonds to the tune of Rs,50,000 (fifty thousand) with two sureties in the like amount to the satisfaction of trial Court. #EndJudgment