2004 PLP 2275 (YLR)

Maher Bakht Ali lodged a report of an occurrence having taken place on 14-11-2003, at about 3-00 p.m., within the limits of the area of Police Station Saddar, Bahawalpur, through F.I.R. No.318 of 2003 under section 324/34, P.P.C. (section 302, P.P.C. was added later on).

2. The facts as narrated in the F.I.R. are that Fazal Ahmad and Maqbool Ahmad were real brothers and were quarrelling with regard to a vacant plot, on 14-11-2003, at about 3-00 p.m. Shahid Jameel brother of the informant was also pre.ent at that place. At that time someone informed the complainant about the presence of Shahid Jameel in the plot (place of quarrel), who proceeded immediately towards the place of occurrence. When he reached there, he heard Malik Fazal Ahmad directing his brother to open fire upon the informant and Shahid Jameel, their old enemies. Narrating further it was stated that on the said order, Maqbool Ahmad fired through his rifle .222 but it could not hit anyone. Thereafter Malik Fazal, gave a command to his son Aurangzeb alias Shahzad who was armed with pistol, to kill them. Upon that instruction, Aurangzeb fired with his pistol at Shahid Jameel, which hit him at his chest who fell down. The injured was shifted to the B.V. Hospital, Bahawalpur but he succumbed to the injuries. Hence, the above cited case was registered.

3. After the arrest and completion of the investigation, the petitioner applied for bail after arrest which was rejected by the learned Sessions Judge on 22-1-2004. Aggrieved from that order, the petitioner has filed the instant bail application.

4. Learned counsel appearing on behalf of the petitioner has prayed for grant of bail on the following grounds:- (i) No role is attributed to the petitioner except ineffective firing. (ii) No recovery of weapon of offence has been made from the petitioner. (iii) No empty cartridges were found from the place of occurrence. (iv) There was no reason to arrive at the place of occurrence for the deceased, but for commission of an offence, because he was on inimical terms with the petitioner. (v) The victim was a hardened criminal and as many as six criminal cases were already registered against him. (vi) That the victim had belonged to a group of possession grabbers and was a leader of that group. (vii) That in five different investigations of high ranking officers it was found that there was cross firing and the deceased had reached there to snatch the possession of the land. (viii) The person on whose behalf and instructions the petitioner had allegedly fired was declared innocent by the Investigating Officer. (ix) That there was no pre-planning and there was no ground to proceed to that place for the deceased except the above mentioned reason and motive. The deceased was found Aggressor by Investigating Officers.

5. Supporting his arguments the learned counsel has given a long list of 27 cases, which citations are mentioned as below:- "Rab Nawaz v. State 1990 SCMR 1085; Mumtaz Hussain v. State 1996 SCMR 1125; Nusrrat Ali v. State NLR 1997 Lahore 570; Muhammad v. State 1998 SCMR 454; Atta Ullah v. State 1999 SCMR 1320; Faraz Akram v. State and others NLR 1999 Lahore 584; Farzand Ali v. Taj and others 2000 SCMR 1854; Zahir Ahmad v. State 2003 SCMR 919; Aman Ullah Khan v. State 1997 SO 320 D.B.; Qalib Abbas v. State 2000 PCr.LJ 464; Naik Muhammad v. State 2000 PCr.LJ 1229; Rajab and others v. State 2002 SO D.B.; Faqir Hussain v. Asad Ali Khan 2003 PCr.LJ 518; Nasir v. State 2000 PCr.LJ 165; Shabbir v. State 2003 MLC 1715; Shafqat Shahzad v. State 2003 MLC 1704; Abdul Majeed v. The State 1986 PCr.LJ 1568; Noor Akbar v. State 1988 PCr.LJ 1305; Barkat Subah v. State 1994 PCr.LJ 850; Muhammad Hussain v. State 1987 PCr.LJ 324; Ghulam Hussain v. State 1987 PCr.LJ 271; Ata Ullah Khan v. State 1987 PCr.LJ 846; Abdul Latif v. State 1987 PCr.LJ 1452; Abdul Haq v. State PLJ 88 Lahore 236 and Muhammad Sharif v. State 1988 PCr.LJ 2450"

6. Learned counsel appearing on behalf of the complainant/informant has stated that the Investigating Agency has found that it was the fire of the petitioner, which had hit Shahid Ali deceased. The learned counsel has admitted the existence of occurrence. He has further submitted that from the place of occurrence, one live cartridge, two empties and one missed bullet was found. It has been argued that the presence of Maqbool Ahmad duly armed with weapon shows their pre-planning and the F.I.R. was promptly lodged. As it was a daylight occurrence and there was no question of mistaken identity and of wrong reporting. So, the petitioner is not entitled to concession of any bail.

7. Learned counsel appearing on behalf of the State has also supported the contention of the learned counsel for the complainant.

8. After hearing the lengthy arguments of the learned counsel and the examination of the record, I have found that basic foundational document of F.I.R., which was lodged by the informant had attributed an ineffective firing role to the account of Maqbol Ahmad. The report of Investigating Agency that the fire of Maqbool Ahmad, petitioner had hit Shahid Jameel deceased has, thus, contradicted the version of the informant/complainant as contained in the F.I.R. Therefore, it has become a case of two versions i.e., Police v. the informant. Who was aggressor and who was aggressed would be determined finally at the trial. What was the reason for the deceased to reach at the spot, all and other questions would be determined after the evidence would be brought at the trial. At this stage, for the purposes of bail, the guidance has to be sought from the law as expounded by the apex Court of this country. The Honourable Supreme Court of Pakistan in a plethora of cases, has granted bail after arrest to such an accused who were ascribed ineffective firing to their score as quoted and cited by the learned counsel for the petitioner in the above noted rulings. The case of the petitioner has, therefore, fallen in the realm of 'further inquiry'. At this stage, the petitioner has been found entitled to the concession of bail after arrest. Accordingly, he is admitted to bail subject to his furnishing bail bond in the sum of Rs.1,00,000 with one surety in the like amount to the satisfaction of the learned trial Court. N.H.Q./M-273/L Bail allowed.