2010 PLP 1809 (MLD)

HASSAN RAZA PASHA, J.

Petitioner Amir Mehmood through the instant petition has sought for post-arrest bail in case F.I.R. No.850 dated 31-10-2009 under sections 302/324/148/149, P.P.C. registered with Police Station Airport, Rawalpindi.

2. Briefly the prosecution case as per F.I.R. is that on 31-10-2009 at about 1.30 p.m. a quarrel took place between the children of the parties. However the matter was patched up. After the lapse of 10 minutes of the earlier incident Jamil came at the spot and gave kicks and fist blows to Sher Akbar and his father. On the same day at 3-00 p.m. Tanvir, Shabbir armed with repeater, Shakeel, Amir, Mobashar and Abid all armed with pistols emerged there. Tanvir fired which hit Saeed Muhammad on his left flank and abdomen, Shabbir fired which landed on the left forehead of Allah Noor, shot fired by Shakeel hit Manzoor Khan on his chest and other parts of the body. Amir, Mobashar and Abid resorted indiscriminate firing due to which Naseer Ahmad was injured and died at the spot. According to the complainant two passersby namely Sardar Khan and Zain Ali were also injured. So, at the instance of Abdullah the above said case was registered. The petitioner was arrested in the case. He applied for his post-arrest bail which was declined by Raja Pervez Akhtar, Additional Sessions Judge, Rawalpindi vide order dated 6-4-2010. Hence this petition.

3. Raja Ikram Ameen Minhas, Advocate, learned counsel for the petitioner has contended that the petitioner has falsely been roped in; that he was found innocent during the investigation conducted by the police; that no crime weapon has been recovered from him; that according to the postmortem report Naseer Ahmad deceased had received one shot at temporal region of the left side of the skull, so, it cannot be said with any certainty that out of the three accused, whose fire hit to the deceased; that the petitioner is a patient of Hepatitis-C and is under treatment since 2008; that health of the petitioner is deteriorating day by day; that the petitioner is behind the bars since his arrest and is no more required for further investigation of the case; that case of the petitioner is one of further inquiry. Learned counsel for the petitioner has relied upon Shabbir Ahmad v. The State (1980 SCMR 920), Asmat Ullah and another v; The State and another (2004 PCr.LJ 2023), Aminullah v. The State (PLD 1982 SC 429), Khalid Javed Gilani v. The State (PLD 1978 SC 256), Malik Muhammad Saleem and others v. Arshad Siddiq and 2 others (1997 SCMR 1829), Muhammad Afzal v. Nazir Ahmad and others (1984 SCMR 429), Muhammad Maroof v. The State (2009 YLR 1952), Muhammad Zaheer v. The State (2009 YLR 816), Muhammad Siddique v. Muhammad Abbas and another (1998 SCMR 284), Gulzar Ahmad v. The State (1994 SCMR 1728), Dr. Muhammad Aslam v The State (1993 SCMR 2288) and Abdul Rehman alias Achar Noonari v. The State (2009 PCr.LJ 239).

4. Ansar Nawaz Mirza, Advocate, learned counsel for the complainant as well as Kh. Sohail Iqbal, learned D.P.-G. has opposed the petition on the ground that he is nominated in the F.I.R. that he has been ascribed shot to the deceased; that opinion of the police finding the petitioner as innocent is not based upon any cogent, tangible and reliable material; that from the medical report it appears that he is suffering from HCV and at present the disease is not detrimental to his life. He has relied upon Shahid v. The State (2004 SCMR 1018), Inayat v. The State (2002 SCMR 129), Mst. Noor Habib v. Saleem Raza and others (2009 SCMR 786), Muhammad Ashraf v. The State and another (2008 SCMR 1372), Ehsan Akbar v. The State and 2 others (2007 SCMR 482), and Muhammad Arshad v. The State and another (1997 SCMR 1275).

5. After hearing learned counsel for the parties and examining the record, I am of the view that it is for the trial Court to give weight to the prosecution in its own wisdom. Time and again, it has been said by this Court that at bail stage, evidence of the parties could not be assessed in depth in order to avoid expression of opinion one way or the other on merits of the case. The petitioner has been nominated in the F.I.R. with a specific role in commission of the crime. These allegations would surely be sufficient on face of them to demonstrate that this was not a case of further inquiry within the meaning of section 497, Cr.P.C. for admission of the petitioner to bail. He is the accused in a case of capital charge. Allegation against the petitioner is that he along with his co-accused while armed with .30 bore pistol made indiscriminate firing, due to which Naseer Ahmad died and two passersby namely Sardar Khan and Zain Ali were injured. No doubt, medical evidence to the extent of Naseer Ahmad is not supporting the prosecution version. In the instant case three persons were murdered and two passersby were injured. In the instant case one Sardar Khan who is admittedly passersby and was injured in the incident. He was having no enmity or ill-will with the present petitioner and his co-accused but he categorically mentioned the names of present petitioner and his co-accused with their specific roles and his evidence cannot be brushed aside. The element of vicarious liability is also available against the petitioner.

6. As far as the arguments regarding the ailment of the petitioner are concerned, medical reports were obtained by the jail doctor who after ascertaining the medical test submitted his report which is as under: "L.F.T. of the said accused was done and medical specialist was called from DHQ Hospital Rawalpindi who advised hepatitis Profile, and Urine report, with device method. He is Anti-HCV negative, Hepatitis-B Negative and HIV negative in his opinion. He is suffering from Acute Hepatitis and UTI for which he advised treatment and Hepatitis Serology by Elisa methods and Renal function tests, which will be arranged from outside Jail. At present his condition is stable and he is under prescribed treatment." As per medical report at present the disease is not detrimental to his life.

6. A far as the plea of innocence of the petitioner is concerned, the findings of the police are not binding on the Court and plea of alibi is an afterthought which cannot be taken into consideration at the bail stage. The challan has been submitted in the court of competent jurisdiction and now the case has been fixed for recording of evidence.

7. The well-reasoned discretionary order passed by the Additional Sessions Judge, Rawalpindi in the matter of post-arrest bail does not suffer from any legal infirmity as the same is based on sound judicial principles laid down by the Superior Courts for safe administration of criminal justice.

8. For the foregoing reasons, this petition having no force is dismissed. However, learned trial Court is directed to conclude the trial expeditiously. N.H.Q./A-126/L Bail refused.