2007 PLP 1194 (YLR)

HASNAT AHMAD KHAN, J.--Through this petition the petitioners have sought post-arrest bail in case F.I.R. No.186 of 2006 dated 3-9-2006, under sections 302 and 392, P.P.C. registered at Police Station Kala, District Dera Ghazi Khan.

2. The brief facts of the case an un folded in the F.I.R. lodged at the instance of Ghulam Yasin are that on 3-9-2006 at 9-45 p.m. an offence of robbery was committed by three unknown persons who were armed with Kalashnikovs. They tried to snatch motorcycle, but on the resistance of father of the petitioner, one of the accused sprayed a burst of Kalashnikov hitting left leg of said Ameer Hussain, while the fire of the other accused also hit his left thigh. The whole of the occurrence was viewed by the complainant and his companion in the light of the tractor. All the culprits decamped from the spot along with robbed motorcycle, while Ameer Hussain succumbed to the injuries.

3. Just for three days of the lodging of the F.I.R., five persons including the petitioners were specifically named as `culprits of above said crime on the basis of the statements of two persons namely Ghulam Murtaza and Saeed Ahmad who had claimed that on the night of occurrence at about 11/12-00 p.m. they were waiting for turn of water when three motorbikes carrying five persons armed with Kalashnikovs reached there and on close inspection they were found to be four petitioners and Ghulam Yasin. According to them, said .persons were looking in hurry and on the basis of said facts, they showed their suspicion of murder of Ameer Hussain against said persons. After receiving said information, the complainant along with other eye-witnesses went to see said persons in their village and recognized Azhar Hussain, Ghulain Hassan and Abdul Ghaffar petitioners as the real culprits. At the same time, Ghulam Murtaza and Saeed Ahmad P.Ws. identified Manzoor Hussain petitioner and Ghulam Yasin as companions of abovementioned petitioners. On the basis of said evidence, the petitioners were arrested by police in the present case.

4. In support of this petition, learned counsel for the petitioners has contended that no identification parade was held to fix the liability of the petitioners; that during the investigation all the accused were found innocent; that no incriminating article was recovered at the instance of the petitioners. He adds that the petitioners have been involved in this case at the instance of Tassaduq Hussain who had got a dispute of and with the petitioners. In support of his contentions, he has relied upon cases reported as Tahir Mehmood v. The State 2002 PCr.LJ 1591 and Farman Ali v. The State 1997 SCMR 971.

5. Learned counsel for the State assisted by the counsel for the complainant has opposed this bail application on the grounds that the offence allegedly committed by the petitioners falls within the prohibitory clause and the offence of Highway robbery being on the up, needs to be curbed with iron hands; that during the investigation, sufficient incriminating material has come on the record and as the petitioners have been identified on the basis of clue provided by Ghulam Murtaza and Saeed Ahmad P.Ws., therefore, there was no need to hold identification parade. He adds that the opinion of the police is not binding upon the Court. In support of his claim, he has relied upon the cases reported as "Muhammad Akbar v. The State 1998 SCMR 2538), "Liaqat Ali v. The State" (PLD 1994 SC 172), "Razzaq Ahmed v. The State" (2002 SCMR 1876) and "Muhammad Afzal and another v. The State" (1982 SCMR 12).

6. After hearing the arguments of both the sides, I have come to the conclusion that as far as the contention of identification of the petitioners is concerned that relates to the deeper appreciation of the evidence and the same cannot be considered at the bail stage. As far as opinion of the police is concerned, .that is not binding upon the Courts especially when same is not based upon sound material and in presence of the statements of the eye-witnesses, no reliance can be placed upon the same. The petitioners are involved in a heinous case of robbery in which father of the complainant lost his life due to fire-arm injuries caused by the petitioners. Offences committed by the accused fall within the prohibitory clause. Case-law cited by learned counsel for the complainant is fully attracted to the facts of the present case. As far as, Azhar Hussain, Abdul Ghaffar and Ghulam Hassan petitioners are concerned, during the investigation, specific role has also been attributed to them. All of them, prima facie, have fully and actively participated in the crime and caused the murder of an innocent person just to snatch a motorcycle. Therefore, they are not entitled to the relief of post-arrest bail. However, the case of Manzoor Hussain alias Dola petitioner is distinguishable from them, for, according to the prosecution, the offence was committed by three persons who were identified by the complainant and other eye-witnesses as Azhar, Abdul Ghaffar and Ghulam Hussain, while Manzoor Hussain petitioner has been involved in this case as companion of main accused on the basis of circumstantial evidence provided by Ghulam Murtaza and Saeed P.Ws. who had allegedly seen him oh the 'night of occurrence with main accused persons. Complainant and witnesses had not seen him at the time of commission of the offence. Therefore, to his extent case of further inquiry has been made out. Hence, the present bail application is accepted to the extent of 'Manzoor Hussain and consequently he is allowed concession of bail subject to furnishing bail bonds in the sum of Rs.2,00,000 (two lacs) with one surety in the like amount to the satisfaction of the learned trial Court. However, application to the extent of remaining petitioners is dismissed. N.H.Q./A-10/L Order accordingly.