2009 PLP 1332 (YLR)

KAZIM ALI MALIK, J.

Khalid Imran, petitioner was arrested in a case F.I.R. No.84, dated 12-2-2008 under sections 302/452/148/149, P.P.C. registered with Police Station Westrage, Rawalpindi and was declined bail by a learned Addl. Sessions Judge, Rawalpindi vide order, dated 20-10-2008. Hence, this bail petition for his bail on facts and law.

2. The prosecution case set up in the F.I.R. in brief, is that Aurang Zeb, complainant and Imran-ud-Din alias Haji Malanga, co-accused established business of supplying milk in Rawalpindi City. Both the sides developed business jealousy and rivalry. On 12-2-2008 in the morning Aurangzeb, complainant along with his sons was on his way to Rawalpindi on a pick up when Khalid Imran, petitioner also enroute Rawalpindi on a pick up crossed the vehicle of the complainant from wrong side upon. which both sides exchanged hot words. The complainant's brother gave beating to afore-mentioned Malanga in retaliation. Respectables of the area intervened and got affected a compromise between the parties.

3. Subsequent to this Aurangzeb, complainant, his brother Mansab Dar, Muhammad Aksar and Qamar uz-Zaman were present in their house when Khalid Imran, petitioner, Imran-ud-Din alias, Malanga, co-accused, armed with .222 rifles; Muhammad Imran, Muhammad Din co-accused, armed with .30 bore pistols and Rehmat Din, co-accused having .12 bore gun alighted from a pick up in front of complainant's house and resorted to aerial firing after having entered the courtyard. Haji Malanga, co-accused threw challenge while his son Khalid Imran, petitioner fired with rifle hitting Mansaab Dar, deceased near his right knee joint. Muhammad Aksar, P.W. also fired with gun as a result Khalid Imran, petitioner and his co-accused persons sustained injuries on different parts of their bodies. Mansab Dar, injured was removed to the hospital but he passed away because of excessive bleeding.

4. Khalid Imran, petitioner put forward his counter version to the effect that as a matter of fact Aurangzeb, complainant, Muhammad Nawaz, Muhammad Aksar, Muhammad Riaz, P.Ws. and Mansab Dar, deceased opened attack as a result he along with his co-accused persons sustained fire-arm injuries.

5. The investigating agency decided as a result of investigation to challan both sides to Court leaving the question of self-defence pleaded by the parties, to be determined by the Court. It so happened that the Deputy Distt. Public Prosecutor did not agree with the result of investigation and opined after having assessed/ examined/analyzed the version and counter version that in his opinion the prosecution version that the complainant and his sons were attacked was more plausible and that there was no occasion to challan both sides. Here, I must say that the Deputy Distt. Public Prosecutor did not remain within his allotted sphere and he assumed the role of investigator and trial Court simultaneously. It is painful to note that he examined and scrutinized the counter versions and evidence brought on record with the yard-stick of trial Court and then concluded that the petitioner and his companions were the aggressors. The learned Law Officer while representing the State was not in a position to defend or support the action taken by the Deputy Distt. Public Prosecutor. The subject of investigation comes within the exclusive domain of jurisdiction of police/investigating agency and there was no factual and legal justification for the Deputy Distt. Prosecutor to encroach upon the functions of the public or to pre-judge the case and cause before its adjudication on merits by the Court of Law. The Deputy Distt. Public Prosecutor cannot and should not be allowed by this Court to hold mini trial of the version and counter version before regular trial of the case by the Court of Law. I, therefore, ignore the observations/remarks/findings by the Deputy Distt. Public Prosecutor being without jurisdiction and' nullity in the eyes of law.

6. Imran ud Din alias Haji Malanga, co-accused was allowed post arrest bail by this Court vide order, dated 29-7-2008 in Criminal Miscellaneous No.380-B of 2008, Muhammad Din, co-accused was also allowed bail by this Court vide order, dated 2-9-2008 in Criminal Miscellaneous No.867-B of 2008. Likewise, Rehmat Din, accused was admitted to bail by this Court by means of order, dated 22-9-2008 in Criminal Miscellaneous No. 968-B of 2008. In the cross-version case Muhammad Aksar, P.W. was admitted to bail by this Court vide order, dated 1-8-2008 in. Criminal Miscellaneous No. 805-B of 2008. Muhammad Riaz alias Khadim Hussain, P.W. and an accused in the cross version was released on bail by this Court vide order, dated 22-9-2008 in Criminal Miscellaneous No.932-B of 2008. A combined examination of the bail granting orders, referred to above would show that the main reason which weighed with this Court while allowing bail to the accused persons of cross cases was that persons from both sides sustained fire-arm injuries at the hands of each other.

7. Learned counsel for the petitioner has contended that Khalid Imran, petitioner, Muhammad Imran, Rehmat Din and Muhammad Din, co-accused persons sustained fire-arm injuries in the incident at the hands of the complainant party and that it was not possible to say with certainty before trial as to which party was at fault. It was also argued that the deceased received only one injury on non-vital part of his body i.e. knee joint which was neither fatal to life nor sufficient to cause death in the ordinary course of nature and that the complainant party themselves contributed towards his killing by delaying his removal to the hospital.

8. Learned Law Officer assisted by learned counsel for the complainant opposed the bail application with the plea that the petitioner being principal accused is not entitled to bail as he fired the only shot which caused the death of Mansab Dar.

9. There is no dispute as to this that Mansab Dar on the complainant side while the petitioner and his three companions on the other side sustained fire-arm injuries at the hands of each other. The investigating agency have decided to challan both sides to Court. Muhammad Aksar, P.W., himself made a statement before the investigator that he fired at the petitioner and his three companions causing them injuries in his self-defence. Keeping in view the mode and manner of the incident and the admitted fact that four persons from the accused side and only one person from the complainant side suffered fire-arm injuries, the question of aggression by any one of them would certainly be resolved by the trial Court after holding full-fledged trial. In the given circumstances, it is beyond the jurisdiction of the investigating agency or the Deputy Distt. Public Prosecutor to decide before trial as to which side is right or wrong. The petitioner allegedly fired only one shot hitting Mansab Dar near his knee joint. The cause of death was excessive bleeding. The contention by the learned counsel for the petitioner that if Mansab Dar, deceased had been removed to the hospital promptly without wasting a single moment he might have survived, is not without substance.

10. Keeping in view all the above noted facts and circumstances together, I feel no difficulty in concluding that the allegation against the petitioner is open to further inquiry. I see no reason to keep him behind the bars, particularly when his co-accused persons and the accused of the cross case have already been admitted to bail.

11. I, therefore, allow this petition and admit the petitioner to bail subject to his furnishing bail bond in the sum of Rs.1,00,000 with one surety of the like amount to the satisfaction of the learned trial Court. M.H./K-6/L Bail granted.