2013 PLP 869 (MLD)

SHAHID HAMEED DAR, J.

Syed Azhar Abbas and Syed Zahid Abbas (petitioners) seek bail after arrest in case F.I.R. No.571 of 2006 dated 9-7-2006 registered for offences under sections 302, 148, 149, P.P.C. at Police Station Civil Lines, Gujrat.

2. Precisely, the prosecution case as narrated by Basheer Hussain Shah (complainant) is that his brother Ghulam Hussain Shah and paternal grandson Umair Abbas while aboard a car, moved towards their house at about 6-30 p.m. on 9-7-2006; their car was intercepted and overtaken by another car, ridden by Azhar Shah (petitioner) armed with kalashnikov, Zahid Abbas Shah alias Poley Shah (petitioner) armed with .223 bore rifle and their armed co-accused, who alighted their car and opened indiscriminate firing at the riders of the other vehicle, killing Ghulam Hussian Shah and Umair Abbas at the spot; the motive behind the occurrence pertained to previous litigation of murders between the parties.

3. Learned counsel for the petitioners submits that the petitioners have been falsely involved in this case in the backdrop of previous enmity between the parties and accusations against them are baseless; no specific role has been assigned to the petitioners and they have been burdened with the act of general firing; the story contained in the F.I.R. was found false during the course of investigation and both the petitioners were repeatedly held innocent by different investigating officers; the complainant of this case has been absconding in another murder case for years, hence, there is no probability of early conclusion of the trial of the accused; the petitioners underwent physical remand for maximum period permissible under the law but nothing was recovered at their instance; the placement of the names of the petitioners in Column No.2 of the challan brings their case within the ambit of section 497(2), Cr.P.C.

4. On the other hand, learned counsel for the complainant submits that the petitioners joined by their co-accused committed a heinous offence during the course of which they committed cold-blooded murder of Ghulam Hussan and Umair Abbas; the investigating officer collected 39 crime empties from the place of occurrence during spot inspection; the petitioners remained absconders for six long years and investigating officer was constrained to file a report against them under section 512 Cr.P.C.; the petitioners, fabricated forged affidavits of the legal heirs of Ghulam Hussain deceased, presented them before the investigating officer, who was in-league with them and fetched an opinion of innocence from him on the basis of such forged documents; one of the legal heirs of the said deceased filed a complaint against the accused/petitioners etc. and got lodged case F.I.R. No.776 of 2010 dated 28-10-2010 against them for offences under sections 420, 468, 471, P.P.C. at Police Station Civil Lines, Gujrat; lastly submits that the petitioners are hired assassins and desperate characters who have little respect for human lives.

5. Learned Addl: Prosecutor-General Punjab relies upon the submissions of learned counsel for the complainant with the addition that the investigation conducted in this case is highly defective as it is based on forged affidavits of the legal heirs of Ghulam Hussain deceased who did not own the contents thereof.

6. After hearing learned counsel for the parties and perusing the record, it is observed that, according to the allegations, the petitioners armed with lethal weapons, joined by their armed co-accused fired recklessly and incessantly at a car, ridden by Ghulam Hussain Shah and Umair Abbas, killing both of them at the spot. The post mortem examination reports of both the deceased reveal that they received dozens of firearm injuries at the hands of the accused. The petitioners absconded after the occurrence and they remained P.Os. for six long years, for which they have no explanation to offer. The factum of unexplained abscondence would certainly extinguish some of their normal rights guaranteed under the substantive law as well as the procedural law. The bullet-ridden bodies of the deceased speak voluminously about the savagery committed by the accused.

7. So far as the opinion of the investigating officer, as pressed into service by the learned counsel, is concerned, it is mainly based on the affidavits of legal heirs of Ghulam Hussain (deceased), one out of whom, namely Mst. Sajida Bibi, a daughter of the deceased moved an application against the petitioners and their co-accused contending therein that the affidavits having been written in their names were forged and fabricated by the accused to spoil the prosecution case, which led to registration of case F.I.R. No.776 of 2010 dated 28-10-2010 under sections 420, 468, 471, P.P.C. against them and others, at Police Station Civil Lines, Gujrat. The affidavit of Mst. Sajida Bibi to the said effect was prepared in year 2010, when the accused-petitioners still absconded. Mst. Sajida Bibi is not a cited eye-witness of the F.I.R. case, hence, keeping the controversy of genuineness or otherwise of her affidavit aside, no benefit could be extended to the accused by the I.O. in terms that they (accused/petitioners) had not been witnessed by her at the spot, at the crucial hour or that they were deemed innocent by her. According to leaned counsel for the complainant the trial of case F.I.R. No.776 of 2010 (supra) is still in progress before the learned trial court. Learned Addl: Prosecutor-General Punjab argued that the opinion formulated by the investigating officer in favour of the petitioners, is not based on any cogent or plausible material. It is evident from the police record that said assertion of the learned Law Officer is not without substance and noted opinion of the investigating officer is nothing but an expression, full of arbitrariness, capriciousness and perversity. The offence allegedly committed by the petitioners entails capital punishment and thus falls within the scope of prohibitory clause of section 497(1), Cr.P.C. There exists no viable reason to believe that the petitioners have not committed the offence alleged.

8. Therefore, I am not inclined to accept this application, which is dismissed accordingly. MWA/A-3/L Bail refused.