2013 PLP 2538 (YLR)

SAYYED MAZAHAR ALI AKBAR NAQVI, J.

Through the instant petition, the petitioner has sought for his post-arrest bail in case F.I.R. No.250, dated 26-4-2012, offence under sections 302, 324, 148, 149, P.P.C., registered with Police Station, Civil Line, Mandi Baha ud Din.

2. The allegation against the petitioner, in brief, as per contents of the F.I.R. is that on 26-4-2012 at 11-00 a.m. he along with his co-accused, all armed with their respective weapons launched murderous attack upon the complainant party. The petitioner has been ascribed the role of raising lalkara and causing three firearm injuries with his Kalashnikov, i.e. one hitting Nadeem Iqbal, injured P.W. on his left foot, second hitting below the left armpit of Tariq Abbas (deceased) and the third hitting Zarafat Ali, a passer-by, towards right side of his abdomen and chest.

3. Learned counsel for the petitioner submits that the petitioner has falsely been roped in the instant case by the complainant against the actual facts and circumstances with ulterior motives. It is argued that though specific role has been ascribed to the petitioner, but the same was found false during the course of investigation. It is contended that the petitioner did not make even a single fire shot on the accused persons, rather during the firing made by the petitioner in self-defence, Zafarat and Robina Kausar, injured P.Ws. sustained firearm injuries. Adds that during the course of first investigation carried out by the local police, the petitioner was found guilty only to the extent that he caused firearm injuries to the injured P.Ws. and did not cause any injury to any of the deceased. Contends that during the course of subsequent investigation carried out by RIB, Sheikhupura, both the injured P.Ws. appeared before the Investigating Officer and stated that the petitioner has not caused any injury to them and as such he was found innocent by the RIB, Sheikhupura. It is contended that both the parties have filed private complaints, in which respondents have been summoned by the learned trial Court. Learned counsel for the petitioner adds that though trial has commenced, but no reasonable progress has been shown in the instant case towards conclusion of the trial. Learned counsel submits that co-accused namely Tariq Mehmood, having identical role has already been admitted to bail by the learned trial Court. In such circumstances, it is argued that the case against the petitioner becomes one of further inquiry falling within the ambit of section 497(2), Cr.P.C.

4. Contrarily, learned Deputy Prosecutor-General assisted by learned counsel for the complainant has vehemently opposed the contentions raised on behalf of the petitioner. It is argued that the petitioner is nominated in the promptly lodged crime report with specific role. Learned Deputy Prosecutor-General submits that the petitioner was found guilty during the course of investigation carried out by the local police as well as by the RIB, Sheikhupura and name of the petitioner has been placed in Column No.3 of the report under section 173, Cr.P.C. It is argued that Kalashnikov has been recovered from the petitioner, which sufficiently connects him with the commission of the offence alleged against him. It is contended that the offence alleged against the petitioner attracts the prohibition contained in section 497(1), Cr.P.C. In such circumstances, it is submitted that the petitioner is not entitled to the relief prayed for.

5. Arguments advanced pro and contra have been heard. I have also perused the record available on file.

6. There is no denial to this factum that the petitioner is specifically named in the F.I.R. which was lodged at the instance of the complainant. The matter in the instant case was reported to the police with promptitude. In the instant case three persons lost their lives and two passerby sustained injuries due to reckless firing of the accused persons. Motive behind the occurrence is also squarely ascribed to the petitioner. The petitioner has been ascribed the role of raising lalkara and causing three firearm injuries with his Kalashnikov, i.e. one hitting Nadeem Iqbal, injured P.W. on his left foot, second hitting below the left armpit of Tariq Abbas (deceased) and the third hitting Zarafat Ali, a passerby, towards right side of his abdomen and chest. The injuries ascribed to the petitioner find corroboration from the medical evidence. As far as argument of learned counsel for the petitioner that the petitioner was found innocent during the course of subsequent investigation carried out by RIB, Sheikhupura is concerned, learned Deputy Prosecutor-General submits that position in this regard is otherwise and the petitioner was found guilty during the course of successive investigations i.e. carried out by the local police as well as by the RIB, Sheikhupura and name of the petitioner has been placed in column No.3 of the report under section 173, Cr.P.C. The weapon of offence has also been recovered from the petitioner. As far as the argument of learned counsel for the petitioner that the petitioner resorted to firing in self-defence is concerned, it is worth-mentioning here that no cross-version was recorded in the instant case. So much so cross-version of the accused party has already been rejected uptill this Court. Such circumstances itself negate that the petitioner resorted to firing in self-defence. The offence alleged against the petitioner falls within the ambit of section 497(1), Cr.P.C. It is a settled principle of law that while disposing of bail applications the courts are supposed to make tentative assessment of the material available on the record and deeper appreciation of evidence/material available on the record is always deprecated by the Superior Courts while adjudicating the ancillary matters like bail applications. Sufficient material is available on the record to connect the petitioner with the commission of the offence alleged against him. Moreover, after commencement of the trial, the Superior Courts ordinarily do not interfere in the bail granting or refusing orders. Reliance in this regard is placed on the case of "Muhammad Sadik and others v. The State (1980 SCMR 203), wherein the august Supreme Court of Pakistan has held as under:-- "

Ss. 497 & 498

Bail

Date already fixed and trial to commence shortly

Not fair, held to go into merits of case in form of a bail application at leave to appeal stage

Case being not fit for grant of special leave to appeal, petition dismissed" Such view was affirmed by the august Supreme Court of Pakistan in the case of "Allah Ditto and others v. The State" (1990 SCMR 307), wherein the august Supreme Court of Pakistan held as follows:- "

S. 497

Penal Code (XLV of 1860), Ss. 307, 379 & 302/149

Constitution of Pakistan (1973), Art. 185(3)

Bail

Case had already been fixed for evidence by Trial Court and therefore no ground was made out for grant of leave

Petition was dismissed in circumstances". Similar view was also affirmed by the august Supreme Court of Pakistan in the cases of Gul Akbar v. The State (2007 SCMR 1798) and Muhammad Hanif v. Shafqat Nazir and others (2007 SCMR 1857).

7. For what has been discussed above, I am of the considered view that the petitioner is not entitled to the concession of bail at this stage. Therefore the instant bail petition having no merits is hereby dismissed. AG/K-25/L Petition dismissed.