1995 PCr (PLP)

The petitioner is involved in case F.I.R. No.316/94, dated 18-8-1994 under section 324/148/149, P.P.C. registered with Police Station Baghbanpura, Gujranwala at the instance of Sultan Muazzam son of Haji Bashir Ahmed, for an occurrence which took place on the same day at about 2 p.m. in the area of Timber Market Hafizabad Road, Gujranwala. The petitioner, through this petition filed under section 497, Cr.P.C. seeks post-arrest bail.

2. The background of the case as narrated in the F.I.R. is that the complainant was running a timber shop situated in Timber Market, Hafizabad Road, Gujranwala, Muhammad Jameel and Walked-uz-Zaman were also dealing with the same business in a separate adjoining shop. On 18-8-1994 at about 2 p.m. when the complainant and his brothers were sitting in their respective shops, the petitioner armed with pistol alongwith Tahir Mehmood armed with pistol, Abdul Hameed armed with dagger and five other unknown persons all of a sudden came there on four motor-cycles. On the exhortation of the petitioner, Tahir Mehmood fired a shot with his pistol which struck Muhammad Jameel at his abdomen. Resultantly he fell- down on the ground. Thereafter, the petitioner fired a shot with his pistol which hit on the left side, of head of Jameel. Abdul Hameed gave a dagger blow to Wahced-uz-Zaman causing him injury on the left side of his head. He. after sustaining the injuries fell on the ground. All the accused persons, thereafter ran away from the place of occurrence on their bikes while brandishing their respective weapons in the air.

3. The accused party also got a case registered against the complainant party on 19-8-1994, in respect of the same occurrence. This case, later on, was cancelled as being false.

4. Tahir Mahmood and Abdul Hameed alias Abdul Hafeez were arrested on 29-8-1994 and Muhammad Nazir, petitioner herein, and others were arrested- on 31-8-1994.

5. The post-arrest bail petition was moved before the learned Additional Sessions Judge, Gujranwala, who vide his order, dated 28-9-1994 allowed the bail to the petitioner on the ground of discrepancy in medico-legal report and the contents of the F.I.R. The complainant had filed the petition for cancellation of the bail which was accepted/allowed to the extent of the petitioner and was declined to the extent of others vide order, dated 20-11-1994 of this Court. Hence this petition.

6. The petitioner seeks post-arrest bail mainly on the grounds that the constitution of the-committee with the concurrence of the parties, during the investigation, consisting of three persons namcly Ch. Inayat Ullah, Ch. Muhammad Siddique, Advocate, and Atta Ullah to probe into the matter was not brought into the knowledge of the Court at the time of decision taken in Criminal Miscellaneous No. 4266/CB of 1994. The committee had submitted it report to the effect that the complainant was not present at the place of occurrence; that the police had, on the recommendation of the committee, cancelled the case lodged by the petitioner's party; that it was also recorded that the petitioner was not present at the spot; that the report, dated 29-8-1994 prepared by the committee was not brought in the notice of the Court previously; that when 'a specific role was ascribed to the petitioner inconsisting with the medical evidence, the case falls within the purview of subsection (2) of section -197, Cr.P.C. In support of his contentions, the learned counsel relied upon Mohsin v. The State 1977 PCr.LJ 159; Abdul Qadir v. The State 1980 PCr.LJ397 and Walayat and another v. The State 1984 SCMR 530.

7. The post-arrest bail petition was vigorously controverted by the learned counsel for the State as well as the learned counsel for the complainant on the ground that the petitioner had led a gang to launch a murderous attack on the complainant party in the thickly populated area. It is a daylight occurrence and had taken place in the shop of the complainant. The petitioner fully participated in the occurrence in aid of his co-accused and facilitated them to commit the crime.

8. I have heard the learned counsel for the respective parties, gone through the record as well as authorities cited with their assistance and have also given my anxious consideration to their submissions.

9. The contention that a committee consisting of three respectables was constituted to probe into the matter while associating with the investigation and the committee had come to the conclusion that the petitioner was neither found present at the spot nor he- had participated in the occurrence, has no force because the result of the probe of the Committee does not attract the expression of further inquiry, nor it amounts a case of two versions. It falls within the purview of the trial Court to determine the evidentiary value of such like evidence. It is well-settled principle that opinion/finding of the Investigating Officer, has no binding force on the Court while deciding the bail petitions and same is the position of the conclusion/finding of the said committee. It cannot be given any weight unless the evidence is recorded at the time of the trial. It is pertinent to mention that the police despite the conclusion of the committee in contrary, has submitted the challan believing that the petitioner was present at the time of occurrence and he full, participated. It may be left for the trial Court, in the circumstances of the case, for its determination. It is a daylight occurrence. The direct evidence of the participation of the petitioner in the crime is very much available on the record. Mere assertions in the absence of proof that he was not present at the spot, cannot be taken as a-ground to extend the concession of bail to the petitioner. The factum of common intention, can only be determined after recording the evidence and it cannot be belied by any proof brought on the file during the investigation. The argument that the case of the petitioner is of further inquiry is of no avail to the petitioner, for, the benefit of section 497(2), Cr.P.C. can only be made' available if the Investigating Officer comes to a definite conclusion that there were no reasonable grounds existed for believing that accused had committed a non-bailable offence and if there are no such findings, no bail can be granted under section 497(2), Cr.P.C. Reliance has been placed on Mst. Bashiran Bibi v. Nisar Ahmed Khan and others; PLD 1990 SC

83. The relevant portion is reproduced below: - It is, therefore, obvious that the expression `further inquiry' is not to be taken lightly nor is to be extended unnecessarily. The second point raised by the learned counsel for the petitioner is that the medical evidence is not in consonance with the ocular evidence of the prosecution, Similar argument was advanced before the august Supreme Court in Sanatta and another v. The State 1982 SCMR 208, but was repelled by their Lordships. For facility of reference, relevant portion is reproduced below:-- In the instant matter the F.I.R. assigns specific roles to the petitioners, and the fact that the medical report does not agree with the account of eye-witnesses of the specific blows delivered by the respective petitioners might well be a relevant factor at the trial, yet at this stage this aspect of the matter cannot be gone into very deeply. In this view of the dictum laid down by the august Supreme Court, the contradictory version in the medical evidence and the eye-witnesses I account of the occurrence, cannot be appreciated in depth at the bail stage. The charge of murderous attack lends ample support from the direct charge in the F.I.R. and statements of the prosecution witnesses coupled with recoveries effected from the petitioner and his co-accused. The presence of the accused at the spot and full participation in the crime himself and lending the support to his co-accused in furtherance of their common intention, facilitated the commission of crime. In the circumstances discussed above, I am not inclined to exercise my discretionary power in allowing bail to the petitioner who led the gang of more than five persons on motor-cycles and launched a murderous attack on the complainant party while they were sitting in their shops. The petition, therefore, fails and is dismissed accordingly. N.H.Q./M-1997/L Bail refused.