2017 P Cr (PLP)

SHAHID HAMEED DAR, J.

The complainant, Muhammad Ameen has alleged in FIR No.54/2015, dated 17.2.2015, under sections 302, 392, 411, P.P.C., registered at Police Station Sarai Mughal, district Kasur that his brother Master Riaz Ahmad, his wife Mst. Asia Bibi and mother-in-law Mst. Haseena Bibi moved towards Adda Mangtanwala on a motorcycle at about 3.30 p.m. on 17.2.2015; when they reached Band Lahorianwala, the embankment of a canal, their motorcycle was intercepted by two unknown armed men, who inquired from his brother, if he had a pistol with him and on his denial, they took his wallet and mobile phone; his brother asked them to return his documents, whereon, one of the intruders made a fire shot into his head, due to which he fell on the ground badly bleeding; in the meanwhile, he and his companions Nemat Ali and Azam Ali also reached there and on seeing them, the unknown killers fled the spot by exhorting that they had done the job; he further contended that he and his companions would identify the unknown accused, if they saw them again; they arranged a carry-dabba, so as to shift his injured brother to a hospital at Lahore, but he succumbed to the injuries on the way, near Phoolnagar.

2. The complainant rendered a supplementary statement on 13.3.2015, whereby he named one Muhammad Younas as a probable killer of his brother, but he was let off by the police, holding him innocent vide case-diary dated 10.5.2015. The investigating officer formulated a report under section 173, Cr.P.C., the same day, holding this case untraced. The complainant rendered yet another supplementary statement on 10.8.2015, whereby he contended that he along with his companion Ali Ahmad took meals at a hotel situated at Adda Shekham at about 2.00 p.m. on 8.8.2015, where they saw two other persons also taking meal, whom he closely looked at and identified them as perpetrators of the crime; when they left the hotel, he asked his companion Ali Ahmad as to who they were, who just left the hotel, whereon he told the name of the taller person as Wajahat alias Nazim son of Ali Muhammad (petitioner), caste Meo, resident of Kot Ch.Naan Khan Hanjrai Kalan and that of the smaller structure as Nadeem son of Din Muhammad, caste Meo, resident of Chak No.47, Tehsil Pattoki; He told Ali Ahmad that both of the men had murdered his brother Riaz Ahmad, but it was the smaller person (Nadeem), who had fired at his brother. The petitioner was arrested on 25.8.2015 and he was immediately sent to jail, where his test identification parade was held on 5.9.2015, during the course of which he and his co-accused Nadeem were correctly picked up by Muhammad Ameen (complainant), Nemat Ali, Azam Ali and Mst. Asia Bibi widow of the deceased. The petitioner was formally arrested on 8.9.2015 and he led to the recovery of the cell-phone of the deceased and a motorcycle on 15.9.2015.

3. Learned counsel for the petitioner has submitted that it is a case of no evidence and whatever has been shown on the record against the petitioner is simply baseless and fictitiously manufactured; the test-identification parade of the accused has been held illegally and it may turn out to be a fallible circumstance in the long run; no role whatsoever has been assigned to the petitioner and the allegation of firing at the deceased has exclusively been attributed to Nadeem co-accused; the petitioner's case is one of further inquiry into his guilt, therefore, he may be set at liberty.

4. On the contrary, learned Deputy Prosecutor General Punjab assisted by learned counsel for the complainant has opposed this application by contending that the petitioner was correctly picked up during test-identification parade not only by the victims, but also by the eye-witnesses; the recovery of cell-phone of the deceased at the instance of the petitioner makes a strong incriminating circumstance against him; the offence against the petitioner entails capital punishment, therefore, he may not be granted the relief, prayed for.

5. After hearing the learned counsel for the parties and perusing the record, it is observed that nomination of the petitioner as accused of this case, through second supplementary statement of the complainant, looked dubious, as Ali Ahmad, who allegedly disclosed the petitioner's name and that of his co-accused, was already sitting with the complainant at the hotel, where both the accused also took meals sitting near them. Ali Ahmad did not tell as to how he knew every bit of the particulars of the accused, including their parentage, caste and complete postal addresses. The complainant, initially, did not tell it to Ali Ahmad that the persons sitting next to them were the murderers of his brother and that he had identified them. He waited for till such time that they calmly left the hotel and only then, he disclosed the 'find' and inquired from him, if he knew them, who answered in affirmative and furnished their complete addresses. If at all it had happened so, they both should have followed the accused and attempted to catch them or at least inform the police immediately about it, but they did nothing of the sort and joined investigation leisurely two days thereafter. The complainant and his companion could have easily nabbed the accused at the hotel, as the latter did not react to their presence despite sitting a few yards away from them, which meant that they had no idea as to their relevance qua the occurrence. The story, as contained in the second supplementary statement of the complainant does not convince much at present. The test identification of the petitioner by the complainant, his bhabhi Mst. Asia Bibi, Azam Ali and Nemat Ali, in the manner, that they merely put their hands on his head to do so, without assigning any role to him, might make it a featherweight exercise. Besides, the complainant did not allege any overt act against the petitioner in his second supplementary statement and he attributed the only firearm injuries, entry and exit, at the head of the deceased, to Nadeem co-accused.

6. So far as recovery of cell-phone of the deceased at the instance of the petitioner on 15.9.2015 is concerned, its evidentiary value may better be adjudged during the course of the trial. The investigating officer added offence under section 411, P.P.C. in this regard, which is punishable with three years imprisonment. The petitioner had not been shown armed at the time of the alleged occurrence. He has been in jail since 25.8.2015 and no more needed by the police for the purpose of any recovery etc. His continued incarceration, in such a situation, may not be of any consequence to the prosecution case. Sufficient reasons exist to believe that his case called for further probe into his guilt within the scope of section 497(2), Cr.P.C.

7. Therefore, this application is allowed and the petitioner is admitted to post-arrest bail subject to furnishing bail bonds in the sum of Rs.5,00,000/- (five lac) with two sureties each in the like amount to the satisfaction of the learned trial court. JK/W-9/L Bail granted.