1997 PLP 3060 (MLD)

Najeeb Faisal Chaudhry for Petitioner. A.H. Masood for the State. Mian Abdul Khaliq for the Complainant. A case under section 302/324/148/149, P.P.C. read with section 14 of the Offences Against Property (Enforcement of Hudood) Ordinance, 1979, was registered against the petitioner and others for committing the murder of Muhammad Riaz, a son of the complainant Muhammad Inayat and one another namely Ahmad Yar.

2. According to the F.I.R., the petitioner alongwith six other, out of whom five were armed with deadly weapons like fire‑arms, opened fire at both the deceased in pursuance of the motive stated in the F.I.R. The petitioner is named in the F.I.R. and a specific role is attributed to him for causing injuries to Muhammad Riaz deceased.

3. It is submitted by the learned counsel for the petitioner that there is a cross version about the occurrence according to which complainant's side was an aggressor for which a reference is made to the registration of F.I.R. No.313 regarding the same occurrence on the next following day i.e. 18‑8‑1996 on the report of Din Muhammad, the father of one of the deceased namely Ahmad Yar. Hence it is submitted that there are two versions about the same occurrence, therefore, it has become a case of further inquiry. Secondly, it is submitted that there are four injuries on the person of Muhammad Riaz deceased, although according to the F.I.R. five persons have made fire‑arm injuries, as such, the medical evidence allegedly contradicts the ocular account of the occurrence. Lastly, it is contended that the Investigating Agency had come to the conclusion that the petitioner had reached the place of occurrence after the murders had already taken place. In this respect, reference is made to a certified copy of the report prepared under section 173, Cr.P.C. according to which the petitioner had reached the spot after the firing had finished, as such, it is contended that the petitioner is entitled to bail keeping in view the principles laid down in 1984 SCMR 429 and 1984 SCMR 521.

4. The bail is resisted by the learned counsel for the complainant and also by the learned State counsel on the ground that the F.I.R. containing the cross version has since been cancelled after the police investigation. However, it is conceded that a private complaint regarding this version has also been filed and is pending in the Court of Sessions. However, it would not give any benefit to the petitioner at this stage because the deeper appreciation about the merits of the case cannot be undertaken at present as to which of the parties was an aggressor. That could only be settled after recording the evidence at the trial. Lastly, it is contended that the principle laid down in the above‑quoted precedents is not attracted to the facts of the present case because the Investigating Agency had not advanced any firm ground to believe about the alleged innocence of the petitioner. Only the Investigating Officer had made an observation that after confronting the parties, he had come to the conclusion that the petitioner had reached the place of occurrence after the firing was over. Despite that, the Investigating Officer opted to place the petitioner in column No.3 of the Challan thereby prima facie holding that he is linked with the occurrence.

5. I have considered the foregoing submissions raised from both the sides. It is enough to say that the petitioner is named in the F.I.R. He was armed with 12 bore gun and had made firing at one of the deceased alongwith his co‑accused, as would be clear from the statements given by the eye witnesses. Even the Investigating Officer had also opted to hold him guilty as according to the report prepared under section 173, Cr. P. C, the petitioner has been placed in column No. 3 instead of column No. 2 which clearly speaks that he has been sent to the Court concerned for facing the trial. The mere observation of the Investigating Officer that the petitioner had reached the place of occurrence after the firing was over would not be sufficient particularly when this opinion is based after confrontation of the parties during the investigation. But, as stated above, he had finally challaned the petitioner to face the trial. The deeper appreciation of the evidence cannot be undertaken at this stage lest it may prejudice the trial itself. There is no extenuating ground to enlarge the petitioner on bail. Hence the bail petition is dismissed. N.H.Q./M‑369/L Bail refused.