2013 PLP 359 (YLR)

SAGHEER AHMAD QADRI, J.

Petitioners Sh. Munir Ahmad son of Sh. Lal Din, Tayyab Munir son of Muhammad Munir, Muhammad Kashif son of Abdul Qadir Sheikh, Muhammad Amin alias Mithu son of Abdul Qadir Sheikh, Zahid Majid son of Abdul Khaliq Aatish, Muhammad Bilal, Muhammad Faisal sons of Miraj Din, Muhammad Asif son of Atta Muhammad and Fayyaz Salim son of Muhammad Salim have moved this petition for grant of pre-arrest bail in case F.I.R. No.144 dated 24-2-2012 registered under sections 324/148/149, P.P.C. at Police Station Naseerabad, District Lahore.

2. Learned counsel for the petitioners at the outset wants to withdraw this petition to the extent of petitioners Nos. 6, 8 and 9 namely Muhammad Bilal, Muhammad Asif and Fayyaz Salim as according to the Investigating Officer, present in Court, they are not required in this case hence, to their extent this petition is dismissed as withdrawn.

3. F.I.R. was lodged by Asif Ali son of Muhammad Ali on 24-2-2012 at 4-30 p.m. mentioning the facts that on said day at 3-00 p.m., he had quarrel with Munir Cut Piece and he submitted an application before the Police Station Naseerabad but no action in time was initiated by the police. Later on Sarfraz Saleem alias Gopa, Fayyaz Saleem alias Baoo, Shahbaz Saleem alias Baba, Munir Cut Piece, Zaidi, Tayyab, Kashif, Mithu along with 15-20 unknown persons at 4-00 p.m armed with different kinds of weapons reached in bazaar and made indiscriminate firing for about half an hour and people due to that firing left that place to save themselves. During that process complainant's nephew Murtaza received fire shot injury on his arm while complainant also suffered injury on his eye by 'butt' blow of a Pump Action rifle. Complainant's nephew was admitted in hospital and the accused were further threatening the complainant and others to kill whole of their family. On this report instant case above mentioned was registered.

4. Learned counsel for the petitioners contends that the complainant although alleged that he received 'butt' blow on his eye but no medical examination was conducted in this respect and later on while changing the version he alleged that he received pellet injury on his eye; that injured Murtaza did not sustain injury on his arm; that statement of injured Murtaza was recorded on 29-2-2012, almost 5 days later to the alleged occurrence but only levelled the allegations against Sarfraz Saleem. Subsequently two supplementary statements of the complainant were recorded wherein he only alleged causing of injury by Sarfraz Saleem accused and none of the present petitioners was levelled any such allegation; that complainant side attempted to extort money from the petitioners and they raised protest in this respect; that the complainant party remained involved in different criminal cases; that co-accused of the petitioners namely Iftikhar Saleem, Zulfiqar Saleem and Shahbaz Saleem have already been granted post-arrest bail. While relying on MUHAMMAD RAMZAN v. ZAFAR ULLAH and another' (1986 SCMR 1380), 'FIDA HUSSAIN v. THE STATE and others' (PLD 2002 Supreme Court 46), `TAHIR ABBAS v. THE STATE' (2003 SCMR 426), 'MUHAMMAD MAHMOOD SULTAN v. THE STATE' (1978 PCr.LJ 104), SHOAIB MEHMOOD BUTT v. IFTIKHAR-UL-HAQ and 3 others (1996 SCMR 1845), 'SHAHID HUSSAIN alias MULTANI v. THE STATE and others' (2011 SCMR 1673), 'ABID ALI alias ALI v. THE STATE' (2011 SCMR 161), 'NOOR MUHAMMAD v. THE STATE' (2008 SCMR 1556), 'HAMZA ALI HAMZA and others v. THE STATE' (2010 SCMR 1219) and 'Dr. MUNAWAR HUSSAIN v. Dr. MUHAMMAD KHAN, DISTRICT HEALTH OFFICER, SARGODHA and 2 others' (2004 SCMR 1462) prayed that interim pre-arrest bail already granted to the petitioner be confirmed.

5. Learned counsel for the complainant on the other hand, vehemently opposed the arguments advanced by the learned counsel for the petitioners and submitted that cross-version put forward by the accused side was turned false during investigation; that accused are also involved in so many criminal cases; that three injuries were sustained on the vital part of the body of the victim; that statement of the injured as he was seriously injured could have not earlier been recorded as he was not fit for making statement according to the Medical Officer; that injured Murtaza remained admitted in hospital for 15 days and Injuries Nos. 1 and 3 were declared Shajhal, Hashima, a fracture, and injury No.2 Jurh Jaifah falling under section 337-D, P.P.C.; that no previous enmity between the parties exists; that accused were armed with deadly weapons at the time of occurrence; that during investigation statements of all the witnesses have been recorded involving the petitioners with the commission of the alleged offence and same is also supported by medical evidence; that no extraordinary circumstances exist for grant of pre-arrest bail as no mala fide on the part of the complainant or the police is shown. While relying on 'IJAZ ALI and others v. The State' (2007 YLR 1785), 'MUHAMMAD WARIS and 4 others v. The State' (2007 YLR 822), 'MEHMOOD AHMAD alias MOODI v. THE STATE' (2006 PCr.LJ 1144), 'CH. WARIS ALI v. THE STATE' (2007 SCMR 1607), 'ASHIR WASIM BABAR v. THE STATE' (2006 SCMR 407) and 'ALLAH BACHAYO and another v. STATE' (2008 PCr.LJ 503), prayed that bail be dismissed.

6. Learned Deputy Prosecutor, General on the basis of record submits that supplementary statement of the complainant was recorded on 2-3-2012 while statements of two witnesses namely Sarfraz and Imran were also recorded on the same day; that as per case diary No.15 dated 16-3-20012 during investigation accused Sarfraz Saleem was found involved in the commission of offence and remaining accused although were found present at the spot but their active participation in the occurrence was not found by the Investigating Officer during the investigation and his fact was further verified in case diary No.27 dated 27-3-2012.

7. I have heard the learned counsel for the parties and perused the record.

8. Initially complainant only mentioned the names of accused Sarfraz Saleem alias Gopa, Fayyaz Saleem alias Baoo, Shahbaz Saleem alias Baba, Munir Cut Piece, Zaidi, Tayyab, Kashif, Mithu but later on twice in supplementary statements, he named the other accused including the present petitioners. Statement of injured Ali Murtaza son of Muhammad Khan was recorded on 29-2-2012 as earlier he was not fit to make any statement wherein he specifically levelled allegation against Sarfraz Saleem alias Gopa of firing directly on him hitting on his right hand and abdomen. He did not name any of the accused/petitioners involving in the commission of the offence. Even otherwise although cross-version is lodged by the petitioners' side claiming that actually the aggression was made by the complainant's side and presence of petitioners Nos.1 to 5 and 7 is shown at the spot but no specific role is attributed to either of the petitioners. Although it is alleged that the petitioners made indiscriminate firing during the occurrence but the Investigating Officer never collected empties whatsoever from the spot. In these circumstances, when the petitioners have joined the investigation and their participation in the occurrence is required further probe hence, their case falls within the ambit of section 497(2), Cr.P.C. Condition for grant of pre-arrest bail i.e. mala fide on the part of the complainant or the police, although allegedly cross-version was lodged but in the circumstances mentioned above, lack of evidence or doubtful circumstances itself creates ground for grant of anticipatory bail hence, it is a fit case for grant of pre-arrest bail therefore, keeping in view the above mentioned circumstances, while allowing this petition to the extent of petitioners Nos.1 to 5 and 7 namely Sh. Munir Ahmad son of Sh. Lal Din, Tayyab Munir son of Muhammad Munir, Muhammad Kashif son of Abdul Qadir Sheikh, Muhammad Amin alias Mithu son of Abdul Qadir Sheikh, Zahid Majid son of Abdul Khalid and Muhammad Faisal son of Miraj Din, interim pre-arrest bail already granted vide order dated 20-3-2012 is confirmed subject to furnishing the fresh bail bonds in the sum of Rs.50,000 (Rupees fifty thousand) each with one surety each in the like amount to the satisfaction of learned trial Court within one week failing which this bail concession shall stand vacated. MWA/M-138/L Bail confirmed.