2006 PLP 148 (YLR)

M. BILAL KHAN, J.

Phul Pir Shah son of Ali Haider Shah, the petitioner by filing the instant petition seeks his post - arrest bail in case F.I.R. No.112, dated 31-10-2004, registered at Police Station, Khatha Sagral, District Khushab for offences under sections 324, 337-A(i), 148 and 149, P.P.C.

2. The case of' the complainant, namely, Qamar Abbas, as narrated in the F.I.R., was that he was a mine owner and dealt in the business of coal; on 31-10-2004, about 2-30 p.m., he along with his brother Faisal, his father Malik Anwar Khan, and Muhammad Usman Haider son of Malik Akbar Khan were present on the first floor of their house; meanwhile the petitioner, armed with a pistol and a .12-bore gun, Yasir Shah, armed with .12-bore repeater, Aseer Shah, Azhar Shah, Saleem Shah, armed with .12-bore guns, Shaukat Shah, Mussarat Shah, Shahzad Gul Andam, Nasir Shah, armed with pistols, and Behram Shah, with rifle .7-MM, came in the street in front of his house while raising Lalkaras; the petitioner exhorted a Lalkara that Malik Anwar be taught a lesson for opposing them in the abduction of the girl of Imdad Hussain Mughal and that nobody be allowed to escape; simultaneously, he tired with his .12-bore gun, which hit on the face of his father on the left side of chin; second fire shot was made by Yasir Shah, son of the petitioner, which hit on the right buttock of his father; thereafter, Azhar Shah fired with his .12-bore gun, which struck Usinan Haider on the right side of the temporal region; Shaukat Shah while raising Lalkara fired a pistol shot at him, which missed; during this while fire-shots were made one after the other which also missed; on the commotion raised by him and his brother Faisal, Malik Manzoor Hussain came to the spot and witnessed the occurrence, whereafter the accused party stopped firing; Malik Anwar and Usman Haider, who had been seriously injured, were shifted to Civil Hospital, Khushab, where Medico-legal reports were obtained; on account of the serous condition of the injured, they were referred to Jauharabad Civil Hospital. The motive behind the occurrence was that there was animosity between the complainant party, on one side, and the petitioner and others, on the other side and litigation was going on; a daughter of Imdad Hussain had been abducted by the petitioner and others, in which matter his father had extended moral support to Imdad Hussain, due to which and also on account of the previous animosity, the petitioner and others after due deliberation and consultation and arming themselves with fire-arms had assaulted them and had injured his father and Usman Haider. Resultantly, the instant F.I.R. had been recorded.

3. The petitioner applied for his post-arrest bail, which had been turned down by the learned Additional Sessions Judge, Khushab, whereafter he moved this Court along with other co-accused by means of Criminal Miscellaneous No.266-B of 2005. However, the learned counsel for the petitioner at that occasion had prayed that the name of the petitioner be deleted from the array of the petitioners, as a result of which his name had been deleted. He again applied for his bail to the learned Additional Sessions Judge, Khushab for his post-arrest bail. His application was again turned down by him vide order dated 18-5-2005. Hence, the instant petition.

4. I have heard the learned counselfor the parties at considerable length and have also gone through the record brought by Muhammad Jaffar, A.S.-I.

5. It has been observed that during the initial investigation, the Investigating Officer had come to the conclusion that insofar as the petitioner was concerned although he was present at the scene of occurrence, yet, he was not found to have been armed with any fire-arm as alleged in the F.I.R. The said investigation was verified by the Deputy Superintendent of Police Circle, Mitha Tiwana, who in his Zimni No.11-B, dated 11-11-2004 opined that although the petitioner had a gun with him, yet, he had not fired with the same. Thereafter, the investigation had been transferred to the Crimes Investigation Branch Punjab, where the same was entrusted to Jawwad Ahmad Dogar, Superintendent of Police. The said police officer had been summoned by this Court. He submitted that after a thorough investigation in the matter he had come to the conclusion that a fight had taken place between both the groups after the complainant party had started demolishing the wall of the house of one Abdul Ghaffar and were loading the bricks on a cart, whereupon the accused party asked the complainant party not to do so, which led to an argument and persons from both the sides gathered and firing had commenced. According to his opinion, firing between the parties continued intermittently, on account of which, Muhammad Anwar, Usman Haider, Fiaz, Aamir Javed, Muhammad Ashraf and Muhammad Javed from the complainant side, whereas Nauman Shah and Dilbagh Shah from the accused side had been injured. The Investigating Officer. was of the opinion that the petitioner was only having a pistol with him, which he always carried as a matter of habit and had not been armed with a gun as alleged; that he had not fired at all and that he had not taken a direct part in the fight. The Superintendent of Police further stated that the report under section 173, Cr.P.C. was in the process of being compiled and that the name of the petitioner would be placed in Column No.2 thereof having been found innocent. The contention of the learned counsel for the complainant that the injured P.W. Malik Anwar clings on his stance which he had taken in his statement under section 161, Cr.P.C. and that the injury received by him on his chin has been confirmed by the doctor is an argument which is quite cogent but at the same time it has to be kept in mind that insofar as the petitioner is concerned there are three successive opinions of innocence recorded by three different Investigating Officers, which cannot be summarily brushed aside. The next contention of the learned counsel for the complainant that ipsi dixit of the police is not binding on the Court is again convincing, but it cannot be lost sight of that the said opinions though not binding are relevant for the purpose of grant of bail. The petitioner is an elderly man of 70/72 years, which claim is not denied by the complainant party also. He is behind the bars for almost eight and a half months and the trial has not commenced as yet. In view of the opinions of the three Investigating Officers and the fact that the injury allegedly attributed to the petitioner was simple in nature, his case calls for further probe within the meanings of subsection (2) of section 497, Cr.P.C.

6. Resultantly, this petition is allowed and the petitioner is admitted to bail subject to his furnishing bail bonds in the sum of Rs.50,000 (Rupees fifty thousand) with two sureties each in the like amount to the satisfaction of the learned trial Court. N.H.Q./P-81/L??????????????????????????????????????????????????????????????????????????????????????????????? Bail allowed.