Petitioner Muhammad Jameel through the instant petition has sought for post-arrest bail in case FIR No, 274 dated 24.6.2003 under Section 302 read with Section 109 PPC registered with Police Station Mautra, District Sialkot.
2. Briefly the allegation against him is that he was party to the criminal conspiracy to do away the deceased.
3. It has been contended on his behalf that he has falsely been roped in; that he is not named in the FIR; that his name for the first time has figured in the supplementary statement of the complainant Zulfiqar Ahmad on 25.06.2003 as conspirator, that supplementary statement of the complainant has no evidentiary value; that the statement under Section 161 Cr.P.C. of the two witnesses namely Liaqat Ali and Muhammad Rafique were fabricated to fill in the lacuna in the prosecution case; that even otherwise the offence under Section 109 PPC has been declared to be repugnant to the injunctions of Islam and in this regard reference has been made to the case of Manzoor Ahmad and another v. The State (PLJ 1997 Cr.C. (Lahore) 884); that he is behind the bars; and that he is previous non-convict.
4. Conversely, the learned State counsel assisted by the learned counsel for the complainant has opposed the petition on the ground that though he is not named in the FIR but his name has figured for the first time in the statement under Section 161 Cr.P.C. of Liaqat Ali and Muhammad Rafique as the conspirator, that the statement of the aforementioned two PWs Liaqat and Muhammad Rafique cannot in any way be said to be supplementary statement; that he on the basis of their statement is prima facie connected with the alleged offence; and that the challan stands submitted in the Court and the formal charge has been framed in the case against him and his co-accused though no evidence so far has been recorded.
5. I have carefully considered the submissions made from both the parties with the help of available record.
6. As said above that the only allegation against him is that he was party to the criminal conspiracy to do away with the deceased. His name is not mentioned in the FIR as the conspirator or the abettor. His name has figured in the supplementary statement of complainant Zulfiqar Ahmad recorded on 25.6.2002 and the statement under Section 161 Cr.P.C. of Liaqat Ali and Muhammad Rafique PWs. The question of evidentiary value of the supplementary statement of the complainant is open to serious consideration.
7. It may be mentioned here that the statement under Section 161 Cr.P.C. of Liaqat Ali and Muhammad Rafique PWs are to the effect that on 24.06.2003 at about 08:00 p.m. they were passing in front of the house of his co-accused Shamshad Ahmad and there they saw them both sitting in the Bathak and talking and Muhammad Jamil (petitioner) instigated Shamshad Ahmed commit the murder of the deceased as she has taken their woman folk to Raj bah of the village for taking bath and by taking bath their clothes had stuck to their bodies and so those were visible and this was a matter of insult to them.
8. On going through their statement, I find that the question that if he could hatch conspiracy with his co-accused in that manner openly to be over heard by others is open to serious consideration.
9. Even otherwise, in the case of Manzoor Ahmad and another v. The State (PLJ 1997 Cr.C. (Lahore)
884), it has been held that the provision of Section 109 Cr.P.C. has been declared to be repugnant to the injunctions of Islam. In that case pre-arrest bail was allowed to the petitioner/accused on that ground.
10. I am, therefore, of the considered view that the case against him requires further inquiry into his guilt and so is covered under Section (2) of Section 497 Cr.P.C.
11. The commencement of his trial is no bar to the grant of bail to him. In this regard reference is made to the cases of Munir v. The State C (2002 M LD 1206 Lahore) and Muhammad Ismail v.
Muhammad Rafique and another (PLD 1989 SC 585).
12. He is stated to be behind the bars and previous non-convict.
13. In these circumstances, the petition is allowed and he is admitted to bail subject to his furnishing bail bonds in the sum of Rs, 1,00,000/- with one surety to the satisfaction of the learned trial Court.