2003 P Cr (PLP)

Tariq Shamim for Petitioner. Qazi Muhammad Saleem for the Complainant. Ms. Shagufta Kausar for the State. Through this application under section 497, Cr.P.C., the petitioner seeks bail after arrest in case F.I.R. No.76 of 2001 registered on 7-4-2001 under section 302/34, P.P.C. at Police Station City Farooqabad, District Sheikhupura on the application of Kabir Hussain at 2-00 p.m.

2. The brief facts as stated by the complainant are that he alongwith his brother Tanvir Hussain came to the house for sleeping alongwith Atif and Qamar. At 10-30 p.m. Kundi of outer door was knocked. In order to enquire who had knocked the same Tanvir Hussain came out of the house but nobody was seen. All of a sudden four persons Zafar Ali armed with .12 bore single barrel gun, Aurangzeb alias Rang armed with .12 bore single barrel gun, Hamad armed with carbine and Rashid armed with Danda came and Zafar Ali raised a Lalkara that he should not be saved on which Aurangzeb petitioner fired hitting Tanvir Hussain on the inner side of the right wrist. Tanvir Hussain tried to save himself by running inside. Zafar Ali fired hitting on the backside of Tanvir Hussain and Rashid also gave a Danda on the head of Tanvir Hussain who fell down on whom Hamad fired with his carbine and the shot hit on the mouth. The occurrence was witnessed by the complainant, Atif and Qamar.

3. The motive of the occurrence has been alleged that in the year 1983 a quarrel took place between the complainant party and the accused and five persons received injuries from the side of the complainant and one person succumbed to the injuries during the occurrence from the side of the accused while two from the other side received the injuries. Both the parties were acquitted and in order to take revenge Hamad etc. in the year 1999 had already made a murderous assault and Tanvir Hussain and the complainant were injured but Tanvir Hussain's life was saved. Again Tanvir Hussain has been fired at by the accused due to earlier motive.

4. Learned counsel for the petitioner contends that the injury attributed to the petitioner was not found on the wrist in the post-mortem examination but it was found on the elbow of the deceased. It is further contended that the injury attributed to the petitioner is not serious and is simple in nature. It is further contended that the local police found Zafar co-accused as innocent and got him discharged from the case. Then second and third investigation was conducted by A.S.P. and Additional S.P., Sheikhupura in which the petitioner and Zafar Ali have been found innocent and have been placed in Column No.2 of the challan. The police has come to the definite conclusion that the petitioner was not present at the spot at the time of occurrence. It is further contended that the petitioner has been placed in Column No.2 and is entitled to the grant of bail. He relies on 1999 PCr.LJ 184 (D.B.).

5. On the other hand learned counsel for the complainant has opposed this petition on the ground that the petitioner who is named in the F.I.R. with a specific role of causing injury which is found present on the body of the deceased is involved in a case falling within the prohibitory clause and is not entitled to the grant of bail. It is further contended that the opinion of the police is not binding on the Courts. He relied on PLD 1983 Sh.C. (AJ&K) 1 and 1998 SCMR page 1743. It is further contended that the empty recovered from the spot has been found matched with the gun recovered from the petitioner.

6. Learned State Counsel has adopted the arguments of the learned counsel for the complainant.

7. I have heard the arguments of the learned counsel for the parties and also perused the record carefully. The police in its finding during investigation conducted by the senior Officers i.e. A.S.P. and Additional S.P., Sheikhupura have come to the definite conclusion that the petitioner was not present at the spot alongwith his co-accused Zafar Ali and has not fired at the deceased and the allegation against him has been found false but as the prosecution witnesses still insisted upon the involvement of the petitioner hence he has been placed in Column No.2 of the challan by putting him at the mercy of the Court. Though the finding of the police is not binding upon the Courts yet it can be considered in peculiar circumstances of the case if it is based on the statements of the witnesses recorded during the investigation and is not based on surmises and conjectures. I am inclined to give benefit to the petitioner of the opinion given by the police alongwith the material factor that the petitioner is only attributed single injury on the non-vital part of the deceased which is simple in nature. In such circumstances the possibility of leveling of the false allegation by the complainant party implicating the petitioner in this case due to the previous enmity between the parties, as is admitted in the F.I.R. cannot be ruled out. The petitioner is behind the bars since 7th of April, 2001. Challan has not yet been submitted after the conclusion of the investigation by the Additional S.P. The accumulative fact of the abovesaid discussion is that the petitioner has succeeded to make out the case for bail after arrest as the bail cannot be withheld as a punishment and his case falls within the purview of further inquiry which is covered by subsection (2) of section 497, Cr.P.C.

8. This application is accepted and the petitioner is admitted to bail subject to his furnishing bail Bonds in the sum of Rs.2,00,000 (Rupees two lacs only) with two sureties each in the like amount to the satisfaction of the learned Judicial/Ilaqa Magistrate, Sheikhupura. H.B.T./A-852/L Bail granted.