1999SCMR2248 (PLP)

SH. RIAZ AHMED, J.

Leave to appeal is sought against the order dated 24-9-1998 whereby application moved on behalf of the petitioner seeking bail was dismissed.

2. The prosecution case in brief as narrated in the F.I.R. by the first informant is that on 31-3-1996 at about 6.30 the first informant alongwith his son Samar Abbas and daughter Mst. Ruqayya Bibi was proceeding towards the Behak and Dera to look after his cattle, which was at a distance of about 1 acre from his house. According to the first informant when they reached near the house of Syed Mashooq Hussain Shah on the road, suddenly Saghir Hussain Shah armed with .12 bore gun, Azhar Hussain and Mumtaz Hussain petitioner both armed with .30 bore pistol, Altaf Hussain armed with .12 bore gun, Iftikhar Hussain armed with a hatchet and Sajjad Hussain all emerged from the Imambargah. Azhar Hussain raised a Lalkara that the first informant should be taught a lesson and fired a shot, which missed. The second shot was fired by the petitioner hitting Mst. Ruqayya Bibi on her abdomen and thigh. Third shot was fired by Altaf Hussain with the .12 bore gun hitting the right foot of Samar Abbas. On the receipt of these injuries, both Mst. Ruqayya Bibi and Samar Abbas fell down. Thereafter, Azhar Hussain exhorted others to kill the first informant, but the first informant took shelter behind the walls of Syed Mashooq Hussin Shah. According to the first informant the occurrence was also seen by Syed Mashooq Hussain Shah and Ghulam Abbas. The motive as narrative in the F.I.R. was that a day before the occurrence, Samar Abbas and Azhar Hussain had quarreled with each other and Azhar Hussain had threatened him with dire consequences. Mst Ruqayya Bibi succumbed to the injuries and died in the hospital.

3. All the accused named in the F.I.R. except the petitioner were released on bail. The bail application of the petitioner was dismissed by the learned Additional Sessions Judge as well as the High Court. In support of this application it has been vehemently argued that in 4 successive investigations the petitioner has been found to be innocent. It was contended that in course of investigation it was found that one Yawar Abbas, a relation of the deceased in fact had fired a shot and it was through an accident that Mst. Ruqayya Bibi died on account of the receipt of the injury. It was further argued that in a habeas corpus petition in respect of the said Yawar Hussain, the S.H.O. admitted that he had arrested Yawar Hussain in this case. The learned Single Judge summoned the entire record of this case and after careful perusal of the same came to the conclusion that as per report submitted by the Superintendent of Police, the petitioner was found to be guilty and the previous reports declaring him innocent were not accepted for the reason that the same were based on the opinion of the arbitrator and in fact the opinion about the innocence of the petitioner was not based upon the investigation, which was required to be carried in accordance with law. One of the eye-witnesses, namely, Samar Abbas, brother of the deceased was injured and, therefore, his presence cannot be disbelieved and he clearly named the petitioner as assailant. Mst. Ruqayya Bibi also made a statement before her death in which she named the petitioner as her assailant. On the basis of this material, the learned Judge in the High Court held that the opinions of various police agencies declaring the petitioner as innocent were not binding and were not based upon sufficient evidence and cogent material. After perusal of the entire facts of the case, we do not find any flaw in the finding arrived at by the learned Judge in the High Court. Prima facie case is made out against the petitioner and it does not fall within the purview of section 497(2), Cr.P.C. The challan against the petitioner has already been submitted. In this view of the matter, we do not find any material warranting interference by this Court, hence leave to appeal is refused and this petition is dismissed. N.H.Q./M-316/S ??????????????????????????????????????????????????????????????????? Leave Refused.