MUHAMMAD FARRUKH MAH MOOD, J.~ Muhammad Ashiq Hussain-petitioner has sought postarrest bail in case FIR No. 108, registered at Police Station Pacce Laran, on 19.4.2002, for offences under Sections 302/460/34, PPC.
2. The case as set down in the FIR was that the complainant Abdul Aziz along with his brother Abdul Rashed and one Muhammad Din went to the house of Abdul Majeed and slept there. At about 2:00 a.m. The Complainant and other PWs got up on the alarm raised by Abdul Majeed-deceased and saw that three persons, who were armed with i.e-arms, were dragging Abdul Majeed. It was further stated in the FIR that within the view of the complainant and the other witnesses most probably Ghulam Mustafa son of Ghulam. Yasin fired at Abdul Majeed-deceased, which hit on his abdomen and proved fatal. Thereafter the accused left the scene of occurrence.
3. After the registration of case, the complainant took a summersault and made a supplementary statement before the Investigating Officer, wherein he substituted the accused mentioned in the FIR with three other accused namely Ghulam Hussain, Bilal and Ashiq Hussain-petitioner, who are brothers inter se. The role of murderer was assigned to Ashiq Hussain-petitioner. In the supplementary statement Abdul Aziz-complainant went on to explain that he had implicated Ghulam Yasin, Muhammad Yousuf and Ghulam Mustafa, who were his step-brothers, for the reason that litigation was pending between them and the complainant over some agricultural land. He further stated that at the time of registration of case he was suffering from grief and, therefore, he implicated the innocent persons instead of real culprits. However, on the same date i.e. 19.4.2002 police recorded the statements of Muhammad Din and Abdul Rashed (PWs), who implicated the petitioner and his brothers as accused. On the same date the statements of Muhammad Iqbal and Manzoor Ahmad were recorded as Wajtakkar, who stated that at about 2:30 a.m. They had seen the petitioner and his accompanied accused at the bank of Chohar Canal. At that time the accused were armed with i.e-arms and were in hurry. The police also recorded the statements of Muhammad Amal and Abdul Qadir on the same date i.e. 19.4.2002, wherein they stated that they had overheard the petitioner and other co-accused hatching conspiracy on 18.4.2002. Statements of Noor Ahmad and Saeed PWs were also recorded on 28.4.2002, wherein it was stated that Rasool Bakhsh, father of the petitioner, had come along with his other sons including the petitioner and made confession before the afore-mentioned PWs turn by turn. The petitioner was arrested on 31.2.2003 and has been sent to the Judicial Lock-up after completion of investigation.
4. The learned counsel for the petitioner has argued that the case has been cooked-up against the petitioner and his other brothers; the name of the petitioner was not mentioned in the FIR; and that -the witnesses, who had involved the innocent persons in a murder case earlier, could not be believed qua the other set of accused. He has lastly argued that all the prosecution witnesses were related inter se.
5. Conversely, the learned counsel for the complainant and the learned counsel appearing on behalf of the State have vehemently opposed this application and have argued that sufficient evidence in the shape of conspiracy, Wajtakkar, extra-judicial confession and ocular was available against the petitioner; that Muhammad Din and Abdul Rashed PWs had named the petitioner in their statements recorded under Section 161, Cr.P.C.; that the detailed analysis regarding the quality of evidence was not permissible at bail stage; and that the conduct of the petitioner reflects on his criminality as he left his abode after the occurrence and was arrested while he was residing at Quetta.
6. I have heard the learned counsel for the parties at length and scanned the entire record of the case minutely. There is no cavil to this fact that the name of the petitioner was not mentioned in the FIR. Both Abdul Rashed and Muhammad Din posed themselves to be eye-witnesses. A perusal of the inquest report reveals that it was prepared within the presence of Abdul Rashed and Muhammad Din PWs. The story given in the inquest report is according to the story or FIR, which prima facie leads to the inference that at the first instance Abdul Rashed and Muhammad Din also supported the story given in the FIR and subsequently they changed their minds.
7. As far as the evidence relating to the story of conspiracy is concerned, the PWs were closely related to the deceased and the complainant and had overheard the conspiracy on 1.8.4.2003 but did not report the same either to the complainant or Abdul Majeed deceased till the occurrence took place. Ordinarily the close relatives would like to inform their relatives about the impending danger immediately.
8. As far as the evidence relating to the extrajudicial confession is concerned, perusal of the statements of witnesses reveals that the extra-judicial confession was made by Rasool Bakhsh, father of the petitioner, and other accused rather than the accused. It is difficult to swallow that a father would take his three sons to make confession, which could be used against them. Similarly, the story of Wajtakkar would hardly enhance the prosecution case. Nothing has been recovered from the petitioner, In one of the investigation conducted by the DSP the petitioner was found to be innocent.
9. As far as the argument of the learned counsel for the complainant relating to the arrest of the petitioner after a long time from a different city is concerned, suffice it to say that the petitioner was never declared absconder. Therefore, his late arrest cannot be used as evidence against him.
It is true that the Court should not indulge in deeper analysis of the evidence at bail stage but it is also true that in order to reach fair decision the Court has to tentatively assess the evidence.
Reliance is placed on the case of Khalid Javed Gillani v. The State (PLD 1978 SC 256). Mere heinousness of the offence cannot be made basis to reject the bail. Neither the bail can be withheld as a punishment. Benefit, if any, even at bail stage is to be given to the accused. Reliance is placed on the case of Manzoor and 4 others v. The State (PLD 1972 SC 81).
10. The upshot of the whole discussion is that I am of the opinion that the allegation against the petitioner needs further probe and inquiry within the ambit of sub-section (2) of Section 497, Cr.P.C., therefore, I admit the petitioner to bail, subject to his furnishing bail bonds in the sum of Rs. 1,00,000/- (Rupees one hundred thousand only) with two sureties, each in the like amount to the satisfaction of the Trial Court.
11. However, it is made clear that the observations made by this Court during the recording of this order are only tentative in nature and would in no way prejudice the mind of the Trial Court. The prosecution would be free to move application for cancellation of bail in case the petitioner after his release on bail adopts delaying tactics in conclusion . Of the trial or misuses the same.
Disposed of.