2019 PLP 1591 (YLR)

SAYYED MAZAHAR ALI AKBAR NAQVI, J.

Through the instant petition filed in terms of Section 497, Cr.P.C. Muhammad Nasir Muneef Qureshi/petitioner has sought for his post-arrest bail in case FIR No.506, dated 21.08.2012, primarily registered under Sections 302, 148, 149, P.P.C., with Police Station Cantt, Sargodha, at the instance of Muhammad Ijaz, complainant/ respondent No.2. Subsequently offence under Section 201, P.P.C., was also added.

2. Prosecution story in brief, as per contents of the crime report, is that on 20.08.2012 at 7:30 p.m. when the complainant along with his son was present in his house, a phone call was received by Tahir Mehmood, who told the complainant that his friends had called upon him and he while riding in a car with them left the house. At 11:30 p.m. the complainant received a phone call that his son was found dead near Circuit House and his dead body was escorted by Rescue-1122 and on the statement of the complainant the FIR was lodged. Subsequently on the same day the complainant came to know that as a matter of fact it was the petitioner, who himself committed murder of son of the petitioner by making firing and thereafter apprised the complainant with a different story based upon twisted facts.

3. Learned counsel for the petitioner while addressing the court submits that the petitioner is innocent and has falsely been involved in the instant case against the actual facts and circumstances due to suspicion. Adds that the petitioner was not named in the crime report lodged by the complainant, who was brought in through supplementary statement and even the same does not commensurate with the prosecution stance contained in the crime report. Adds that pistol allegedly recovered from the petitioner has been planted upon him in order to strengthen the prosecution case. It is vehemently argued on behalf of the petitioner that the medical evidence does not coincide with the occular account and even there was no motive with the petitioner to have committed the murder of a young guy without any previous enmity or ill-will. Further submits that the petitioner is a senior police officer and due to rivalry in the department he has been involved in the instant case maliciously. In absence of any direct incriminating material to saddle him with the liability, learned counsel for the petitioner urges, prosecution case against him squarely falls within the ambit of further inquiry calling for further probe within the ambit of Section 497(2), Cr.P.C, therefore, he is entitled to the concession of post-arrest bail. In support of his contentions learned counsel refers dictum of law laid down in the cases of Muhammad Khan v. Muhammad Basir and others (2003 SCMR 427) Noor Muhammad v. The State (2008 SCMR 1556), Abid Ali alias Ali v. The State (2011 SCMR 161), Muhammad Irfan and others v. The State and others (2012 PCr.LJ 625).

4. Contrarily, learned Deputy Prosecutor General assisted by learned counsel for the complainant vehemently opposes the contentions raised by learned counsel for the petitioner. Learned counsel for the complainant submits that this is not a case of ordinary nature rather the petitioner is Superintendent of Police, who after committing the murder of young son of the complainant aged about 21 years; thereby misusing his official capacity by twisting the actual facts, got lodged case against other accused persons/friends of deceased. Further contends that the petitioner was roped in this case on the same day as sole proprietor of the occurrence and statements of four prosecution witnesses under Section 161, Cr.P.C. were recorded in this regard. It is vehemently argued that at the time of spot inspection the Investigating Officer had collected ten crime empties from the place of occurrence, which matched with the official pistol of the petitioner and report of Forensic Science Laboratory in this regard is positive. Learned counsel finally submits that the case being of extra-ordinary circumstances coupled with the fact that prosecution evidence is in progress, at this stage, the petitioner is not entitled to the concession of post-arrest bail. Learned counsel for the complainant places reliance on the dictum of law laid down in the cases of Khalid Javed and another v. The State (2003 SCMR 1419) and The State through Force Commander, Anti-Narcotics Force, Rawalpindi v. Khalid Sharif (2006 SCMR 1265).

5. I have heard the arguments advanced by learned counsel for the petitioner, learned counsel for the complainant, as well as, learned Deputy Prosecutor General and gone through the record available on file.

6. It is established principle of law that each criminal case has its own peculiar facts and circumstances. In the instant case in ordinary circumstances non-mentioning the name of the petitioner in crime report coupled with the names of the PWs would have been of much significance but this Court has to scrutinize the material available on record to arrive at just conclusion of the lis in hand. It is an admitted fact that the petitioner in this case is a Senior Police Officer who was posted in the same district at the relevant time. While incorporating crime report his name was not arrayed but soon after the occurrence the same was mentioned through supplementary statement coupled with the statements of prosecution witnesses in terms of Section 161, Cr.P.C, who unanimously supported the prosecution version levelled against the petitioner that he had committed the occurrence in a very cruel/reckless manner. The recovery of dead body nearby the residence of the petitioner coupled with the recovery of weapon of offence (official pistol) and positive report of Forensic Science Laboratory in respect thereof, further substantiates the prosecution case qua culpability of the petitioner. It is a pity that a senior officer of the law enforcing agency had taken law into his own hands on such a trivial matter resulting into culpable homicide of a young boy just 21 years of age. The investigation carried out by the Investigating Officer against the petitioner; wherein accusations brought through supplementary statement were fully accredited while placing his name in column No.3 further lend support to the prosecution case. All these facts when put side by side prima facie persuade this Court to believe that there is sufficient material available on record to connect the petitioner with the commission of such a heinous offence, which entails capital punishment. It is established principle of law that only tentative assessment of facts is required while disposing of the ancillary matters.

7. As far as commencement of trial is concerned, it is established practice that ordinarily superior courts avoid to indulge in the ancillary matters like bail, etc to render any finding which could prejudice the case of either party during trial. Respectful reliance in this regard is placed on the ratio decidendi of august Supreme Court of Pakistan in the cases of Muhammad Sadik and others v. The State (1980 SCMR 203), Tahir Hassan Hashmi v. The State (1990 SCMR 326), Gul Akbar v. The State (2007 SCMR 1798) and Muhammad Hanif v. Shafqat Nazir and others (2007 SCMR 1857).

8. For the foregoing reasons, this Court has been persuaded to hold that prima facie reasonable grounds do exist regarding the culpability of the petitioner to saddle him with the liability coupled with the fact that five prosecution witnesses have already been examined and as such the petitioner is not entitled to the concession of bail in such circumstances. Resultantly the instant petition is devoid of legal justification, which is accordingly DISMISSED. SA/M-69/L Petition dismissed.