1997 PLP 1619 (MLD)

1997 MLD 167 and Sunen Ibne Maja Sharif ref. Sardar Muhammad Latif Khan Khosa for Petitioners. Mian Muhammad Bashir, A.A.‑G. with Miss Tasnim Amin, Advocate. The petitioners who are accused in case F.I.R. No.209 of 1994 dated 20‑5‑1994 under sections 302/148 and 149, P.P.C. registered at Police Station Theekriwala, District Faisalabad seek to be admitted to bail.

2. According to F.I.R., Qamar-uz-Zaman armed with rifle, Sarfraz alias Kakku equipped with .12 bore gun, Intizar, Shafique, Mohsin, Azhar, Fayyaz Ahmed, Badar and Zulfiqar armed with Sotas in prosecution of their common object caused the death of Muhammad Akram, son of Haji Allah Bakhsh, complainant.

3. Learned counsel for the petitioners contended that the petitioners are not nominated accused in the F.I.R.; relied upon the affidavit sworn by Haji Allah Bukhsh, complainant, father of the deceased wherein he has deposed that the petitioners did not commit the murder of his son; petitioners are kith and kins of the deceased; they were made accused for the first time during the investigation carried out by Haji Muhammad Idrees, Inspector Range Crimes, Faisalabad in a mosque who vide his Zimni No.69 dated 19‑2‑1995 came to the conclusion that there was some fight between the Rajput party and the Jat party who is complainant in this case and in that fight the deceased died due to firing of Salim alias Seema and his associates who are petitioners in this case; according to the learned counsel, under the Islamic society, mosque cannot he used for mundane affairs and as such investigation carried out in the mosque has no legal sanctity; further contended that medical evidence too support the initial version given by the complainant; in fact, Inspector Haji Muhammad Idrees under the garb of investigation destroyed and deliberately twisted the evidence of the case already on record on the basis of which the challan vas submitted it: the Court on 10‑10‑1994, with mala fide to give undue advantage to the accused persons. Even during the investigation, he recorded the statements of accuse persons which are not permissible under the law. It was further argued that Inspector Haji Muhammad Idrees who started the investigation after lapse of few months intentionally gave new dimension to the prosecution version and introduced a story of fight between two groups, that is, Jat and Rajput. According to his investigation, the Jat group who is complainant and the Rajput group who was accused had fight over children dispute and as a result of cross- firing, unfortunately Muhammad Akram died at the hands of his own party-men. According to the learned counsel, there is no evidence whatsoever available on record to justify these findings and it appears that the introduction of new version is nothing but figment of the mind of the Investigating Officer who was bent upon to destroy the prosecution case initially set which was getting ample support from the evidence on record. Learned counsel in support of his submissions relied on 1997 MLD 167 and on page 236 of the Sunen Ibne Maja Sharif which reads as under:‑‑

It was further submitted that under the Islamic Society, mosque enjoys highest respect and is meant for spiritual attainment and prayer and cannot be used by the police to procure evidence during the investigation on the basis of oath on Holy Book. Learned counsel argued that this is against the provisions of Article 163 of the Qanun‑e‑Shahadat.

4. Learned law officer assisted by the police officer as well as learned counsel for the State have conceded that under the scheme of Cr.P.C. as well as under the Islamic Society, mosque cannot be used for worldly affairs what to say of making investigation. They have also conceded that it has been rightly held in Sunen Ibne Maja Sharif that the Holy Prophet (peace be upon him) had forbidden that mosque be not used for temporal purposes rather it impairs the sanctity of the mosque. With respect to merits of the case, learned law officer submitted that in the presence of latest investigation carried out by the Inspector Range Crimes, there exists reasonable grounds to believe that Saleem alias Seema and other petitioners are involved in a case which falls within the prohibitory clause and they are not entitled to the grant of bail.

5. I have heard learned counsel for the parties at length and have perused the record.

6. It is an admitted fact that initially in the F.I.R., the petitioners are not nominated accused; the F.I.R. was lodged by Allah Bukhsh, father of the deceased who is an eye‑witness too; the F.I.R. was recorded on the same day which gets corroboration from the medical evidence. It is for the first time by a belated Zimni No.69 dated 9‑2‑1995 by an Inspector of Range Crimes Faisalabad, the present petitioners were arraigned as accused with the sole object of destroying the case initially set up by the father of the deceased, Allah Bukhsh. Even the complainant has also sworn an affidavit to the effect that the petitioners are not involved in the case. No recovery has been effected from them. The version given by the Inspector Range Crimes is highly improbable, fantastic and beyond the scope of investigation as the purpose of investigation is to collect evidence in support of the prosecution case or to find out the truth. In the present case, it appears that the Inspector Range Crimes in order to oblige Qamar-uz-Zaman and Sarfraz who are accused according to F.I.R. and are behind the bar, based his opinion on the evidence of strangers. In view of above discussion, I find the case against the petitioners falls within the ambit of subsection (2) to section 497, Cr.P.C. and they are entitled to the grant of bail in a case which falls within the prohibitory clause. I direct that the petitioners shall be released on bail provided they furnish bail bond in the sum of Rs.50,000 (fifty thousand only) with one surety each in the like amount to the satisfaction of trial Court/Judicial Magistrate, Police Station Theekriwala, District Faisalabad. N.H.Q./M‑201/L Bail granted.