2005 P Cr (PLP)

Muhammad Khan, the petitioner, by filing the instant petition, seeks his post-arrest bail in case F.I.R. No.489 of 2003, dated 22-12-2003, registered at Police Station Kot Moman, Sargodha for offences under sections 324, 337-F(i), 337-L(1), 148, 149 read with section 109, P.P.C.

2. The case of the prosecution as it unfolded in the F.I.R. recorded at the instance of Faiz Ahmad son of Muhammad Ali, complainant was that on 22-12-2003 in the evening he along with his son Zahid Abbas, Haji Safdar Ali son of Hassan Ali and Muhammad Aslam son of Ahmad Ali, were proceeding towards the house of Safdar Ali from their Dera; his son Zahid Abbas was a few paces ahead of them for answering the call of nature; during this while Muhammad Khan (the petitioner), Muhammad Akram sons of Muhammad Sarwar, armed with .12 bore guns, Naeem Ahmad son of Ahmad Khan,. Arshad and Ashraf sons of Faiz Ahmad, armed with fire-arms riding a Suzuki car and two unknown persons riding a motorbike arrived; after parking the car nearby they alighted from the same and the petitioner shouted at Zahid Abbas that he would not be allowed to escape and simultaneously fired at him, who received the same at his back and fell down; the second fire was made by Muhammad Akram, which also landed at his back; likewise Naeem Ahmad fired a shot which again struck'' at the back of his son; thereafter the accused persons while firing and raising Lalkaras proceeded towards their Dera located on the western side in their Suzuki car. The motive according to the F.I.R. was that there was bnmity between the complainant party, on one side, and Muhammad Khan petitioner and others, on the other side and that as an outcome thereof the accused persons after due deliberation and consultation had launched murderous assault on Zahid Abbas. According to the complainant, they had removed Zahid Abbas injured to Kot Moman Hospital, where the doctor was not available and in view of the serious condition of the injured he had been taken to Sargodha Hospital. Resultantly, the instant F.I.R. had been recorded.

3. The petitioner had been arrested on 28-1-2005 i.e. more than thirteen months after the occurrence. He applied for his post-arrest bail, however, his application was turned down by the learned Additional Sessions Judge, Bhalwal vide his order dated 25-2-2005. Hence, the instant petition.

4. The learned counsel for the petitioner in support of his plea for post-arrest bail argued that the matter had been investigated by as many as four Investigating Officers, who had unanimously opined that neither the petitioner was present at the place of occurrence nor had he used his fire-arm, but the petitioner had been found guilty only of behind the scene abetment i.e. that the attack had been launched under his instructions and support; that according to the Medico-legal report, although Zahid Abbas injured had received five injuries, yet, there was only two injuries found at his back and as such there was a contradiction between the ocular account and the Medico-legal report; that the nature and the dimensions of the injuries suggest that they were caused by one fire shot that the petitioner had been medically examined about two weeks before the lodging of the instant F.I.R. as he himself had been subjected to a murderous assault, as a result of which he had received serious injuries and as such it was not physically possible for him to participate in the occurrence; that no recovery had been effected from the petitioner and in fact recovery of .12 bore gun had been effected from one Muhammad Afzal about whom the Investigating Offices had opined that he was the real culprit,, although his name did not figure in the F.I.R.; that there was admitted enmity between the parties and as such the false involvement of the petitioner cannot be ruled out. He finally argued that keeping in view the facts and circumstances of the case and opinion rendered by the Investigating Officers, the case of the petitioner is one of further inquiry within the meanings of subsection (2) of section 497, Cr.P.C. He relied upon the case Sher Khan v. The State 2003 PCr.LJ 1149 in support of his plea. In the said case, the Honourable Peshawar High Court had granted bail to three petitioners mainly on the ground that for two injuries as many as three persons had been charged without specifying as to whose fire turned effective and the injuries were found on the non-vital part of the body.

5. On the other hand, the learned counsel for the complainant strenuously opposed the grant of bail to the petitioner by arguing that the petitioner could be arrested only thirteen months after the occurrence; that he had been procuring orders for pre-arrest bail from the Court of Session as also from this Court on a number of occasions and has been misusing the concession of bail-, that he is a hardened criminal and is involved in a number of cases; that the complainant of the case, Zahid Abbas, who suffered injuries in the transaction, and the witnesses named in the F.I.R. are resolutely clinging on to the stance taken by them in the F.I.R. and in view of all this any opinion to the contrary by the police is not binding on the Court; that at any rate even if the petitioner is liable under section 109, P.P.C., he is not entitled to the concession of bail as he is the one, who bore enmity with the complainant party and wanted to settle scores with it. He relied on Bashir Ahmad and 2 others v. The State 1994 SCMR 1147; Wajid Ali v. Mumtaz Ali Khan and another 2000 MLD 1172 and Hafiz Abdul Malik v. The State 2000 MLD 1808. In Bashir Ahmad's case (supra) the Honourable apex Court held that, although the principle was that if the investigation itself exonerates an accused, he is entitled to bail, but this rule would not be applicable if the final report of the Investigating Agency is based only on inadmissible evidence. In the case of Wajid Ali (supra), a Division Bench of this Court observed that an abettor would be liable to same punishment just as the main accused and that the abettor for all practical purposes has to face the consequences of the criminal act just like the accused, who had committed the actual offence. In the said case, the accused, who had been charged of confederating, conspiring and abetting with his co-accused in commission of offence of murder of three persons, had been allowed bail by the Court of Session and the said concession had been recalled by the High Court. In Hafiz Abdul Malik's case (supra), bail was refused by a Division Bench of this Court to an accused, who had hatched out conspiracy and in pursuance thereof his co-accused had committed the offence of murder.

6. The learned counsel for the State adopted the arguments advanced by the learned counsel for the complainant and submitted that on account of the despicable conduct exhibited by the petitioner, he was not entitled to the concession of bail.

7. I have heard the learned counsel for the parties at considerable length and have also perused the record brought by Muhammad Nawaz, A.S.-I.

8. It has been noticed that the case had been registered on 22-12-2003. The petitioner approached the Court of Session on 24-12-2003 and obtained ad interim pre-arrest bail, however, he withdrew his application on 28-12-2003. He again applied to the Court of Session on 30-1-2004 and secured ad interim pre-arrest bail. His application was dismissed on 9-2-2004. Thereafter, he approached this Court through an application bearing Criminal Miscellaneous No. 1167/B of 2004, which had been dismissed as having been withdrawn on 18-2-2004. He again moved this Court by means of Criminal Miscellaneous No.4221/B of 2004, which had been dismissed for non-prosecution on 17-6-2004. Another application bearing Criminal Miscellaneous No.4373/B of 2004 was dismissed in limine on 22-6-2004. Thereafter, he approached this Court for quashing the F.I.R., by .filing Writ Petition No.11203/Q of 2004 by concealing the fact that he had earlier moved this Court for his pre-arrest bail vide Criminal Miscellaneous No.1167/B of 2004, which had been dismissed by this Court on 18-2-2004. The said writ petition had been dismissed by this Court on 13-12-2004 and it was inter alia observed as under:-- "The petitioner had moved this writ petition concealing the factum of his earlier pre-arrest bail application bearing Criminal Miscellaneous No. 1167/13 of 2004 which had been dismissed by this Court on 18-2-2004. It was due to this material concealment that my learned brother Sh. Abdul Rashid, J. vide his Lordship's order dated 6-7-2004 had directed that the petitioner would not be arrested in this case till further orders: However, on being informed about the dismissal of the earlier bail application referred to above, his Lordship sent the case to the office for placing the same before me. The petitioner has indulged in deliberate concealment and by moving the instant writ petition he had tried to steal a march on the Court itself. He has not approached this Court with clean bands and is not entitled to any discretionary relief." The petitioner moved yet another pre-arrest bail application bearing Criminal Miscellaneous No.275/13 of 2005 before this Court, which had also been dismissed on 24-1-2005, where after he had been arrested on 28-1-2005. It may be relevant to mention that while dismissing application bearing Criminal Miscellaneous No.4373/B of 2004, this Court vide its order dated 22-6-2004 had observed as under:-- "I would not like to comment on the veracity of the allegations leveled against the petitioner. Suffice it to say that the case was registered as far back as on 22-12-2003. Six months have elapsed and the petitioner has successfully managed to elude the process of law. This is his third pre-arrest bail application in this Court. His earlier bail application Criminal Miscellaneous 1167/B of 2004 had been dismissed as having been withdrawn on 18-2-2004 whereas his second bail Application No.4221/B of 2004 had been dismissed for non-prosecution on 17-6-2004. He is playing fast and loose with the process of the Court and on account of his conduct he has rendered himself disentitled to the extraordinary relief of pre-arrest bail. There is no merit in this petition which is dismissed in limine." While disposing of the petitioner's final bail application (Criminal Miscellaneous No.275/B of 2005), this Court had inter alia observed as under:-- "(2) The learned counsel for the petitioner has again attempted to argue the case on merits contending that the petitioner has since been found to be involved only to the extent of conspiracy and that being injured during the course of some dacoity he was not in a position to fire as alleged in the instant F.I.R. I am afraid all these contentions had earlier been entertained and it was, thereafter, that the earlier bail petitions had been dismissed. The petitioner has flouted the process of law with impunity. (3) There is no merit in this petition which is accordingly dismissed. (4) Before parting with this order I am constrained to observe with considerable regret that the investigation of this case is being carried out in a most casual and unprofessional manner. Although more than 13 months have elapsed yet the challan has not been submitted and the injuries suffered by the victim have not even been got determined by the doctor. In this situation it would be in the interest of justice to transfer the investigation of this case from the local police. I, therefore, direct that the investigation of this case shall forthwith be taken over by the Punjab Investigation Branch. The file shall be transmitted to the Additional Inspector-General of Police (Investigation) who shall entrust the same to an upright officer not below the rank of D.S.P." This speaks for the conduct of the petitioner and the way he had been playing around with the process of the Court. All the pleas raised by the learned counsel for the petitioner at the time when his application for pre-arrest bail (Criminal Miscellaneous No.275/B of 2005) had been decided, had been attended to. From the tenor of paragraphs Nos.2 and 3 of the said order, which have been reproduced above, it would be clear that this Court while turning down his plea for pre-arrest bail had not only declined the same on account of lack of mala fides, but the merits or the case had also been taken into consideration. It is now well-settled that if pre-arrest bail is declined on merits and not simply on account of lack of mala fides, then post-arrest bail can also not been granted. In this connection reference can be made to the case of Muhammad Nawaz v. The State 1990 ALD

650. Even otherwise the record reveals that the D.S.P., who had conducted investigation on the orders of this Court had observed during the course of investigation that the petitioner was a great schemer and had manoeuvred the murderous assault on the complainant party with perfection. The challan has been submitted in the trial Court and the delay in commencement of trial, which has been occasioned so C far is due to the conduct of the petitioner himself, who has been running away from justice for more than thirteen months. I have been told that Zahid Abbas, injured, who is a young man of 23/24 years of age has been rendered paralyzed waist downwards on account of the injuries received by him and is now bed-bound. The provisions of section 324, P.P.C. attract the prohibitory clause of section 497(1), Cr.P.C. The fact that Muhammad Afzal had been granted bail by this Court does not advance the case of the petitioner inasmuch as the said Muhammad Afzal had not been nominated in the F.I.R. and his name surfaced for the first time in the supplementary statement made by the complainant twenty clays after the occurrence. The precedent cited by the learned counsel for the petitioner proceeds on different facts and does not advance his case for the grant of bail, whereas the precedents cited by the learned counsel for the complainant are quite apt in the facts and circumstances of the case and advance his plea for refusal of bail. There is no merit in this petition, which is accordingly dismissed. N.H.Q./M-1153/L Bail refused.