2005 PLP 474 (MLD)

2. Briefly, the prosecution case as per F.I.R. is that on 15‑4‑2004 at about 6‑15 p.m. Muhammad Ashraf and others, while armed with lethal weapon have trespassed into the Dera of Muhammad Sabir and there they resorted to indiscriminate firing on the persons present there resulting into his death and that of Muhammad Nawaz, Muhammad Mustafa, Khizar Hayat and Hameed Ullah and injuries to the two ladies namely Mst. Fazeelat Bibi and Mst. Firzana Bibi sitting in the courtyard.

3. The motive behind the occurrence is that accused Muhammad Ashraf's two brothers namely Muhammad Ashgar and Muhammad Akbar were murdered and a case in respect of the same was registered against deceased Muhammad Sabir and others. Muhammad Sabir was acquitted in that case. The accused had grudge over the same. They over the same have committed the above act.

4. After hearing the learned counsel for the parties and perusing the record, I find that the petitioner is named in the F.I.R. He allegedly alongwith others had fired indiscriminately at the aforesaid deceased persons sitting in the room of the Dera of Muhammad Sabir deceased. Learned counsel for the petitioner has submitted that he in successive three investigation has been found to be innocent and that no specific injury to the deceased persons is attributed to him and that no weapon of offence was recovered from him and all these facts make his case as one of further inquiry into his guilt. He in this regard has placed reliance upon the cases of Jaffar and others v. The State (1980 SCMR 784) and Dr. Muhammad Aslam v. The State (1993 SCMR 2288).

5. I am afraid that firstly the opinion of the police is not binding upon this Court. Secondly, that such opinion in this case seems not based upon any sound material on the record, while contrary to that four eye‑witnesses and the two injured ladies have implicated him with the charge against him.

6. It reflects also from the F.I.R. that the assailants have come from the outside and they had resorted to firing on the people sitting inside the Dera of the said deceased and the same has resulted into the loss of lives of five persons and injuries to the aforesaid two ladies present in the courtyard of that Dera. The happening of the incident inside the Dera of the said deceased heavily suggest that the petitioner and his co‑accused have initiated aggression.

7. As regards the case‑law cited above by his side, with all respect, the same is not aptly applicable to his case for its distinguishable facts and features than that of those cases.

8. It may be mentioned here with all relevance that each criminal case is to be adjudged in the background of it's own facts and circumstances.

9. There also can't be two opinions that facts of two criminal cases seldom co‑incide. The distinctive feature of his case than those cases is that there is sufficient incriminating evidence/material available on the record against him including the statement under section 161, Cr.P.C. of the six eye‑witnesses including the two injured ladies. He on the basis of the same is prima facie connected with the alleged offence. The opinion of the police can't be preferred over such material.

10. The number of the deceased persons in this case is sufficiently high besides the injured ladies and such was not the position in the cited cases. Those, therefore, are not applicable to his case.

11. It may be mentioned here that in the incident like the one in hand, it is very difficult to account for or explain the exact infliction or injuries or the hitting, of fire of each individual accused with certitude. However, no further comment is needed on this aspect of the matter lest it may be prejudicial to the case of either of the parties at any subsequent stage.

12. The offence is heinous in nature and covered under the prohibitory clause of section 497(1), Cr.P.C. as well.

13. In these peculiar facts and circumstances of the case, I have not been persuaded to extend him the relief of bail. The petition, therefore, is dismissed.

14. It is, however, made clear here that any observation made above shall not influence the mind of the learned trial Court in any manner. H.B.T./M‑754/L Petition dismissed.