2005 PLP 778 (YLR)

Malik Asghar Ali Awan for the State. Muhammad Attique, S.‑I. P.S. Qadirpur, District Jhang with Police File. Haider Ali son of Ghulam Ali seeks his post arrest bail in case F.I.R. No.210, dated 29‑8‑2002 registered at Police Station Qadirpur, District Jhang for offence under section 302/34, P.P.C.

2. The case of the prosecution as unfolded in the F.I.R. registered at the instance of Ghulam Ahmad son of Muhammad Shafi was that on 29‑8‑2002 he along with Maratab Ali son of Haji Ahmad Shafi, Khalid Hayat son of Atta Ullah, Muhammad Yar son of Bahawal and Muhammad Zafar son of Salehoon left Jhang for Tahli Daulat Khan after attending the hearing of bail petition of his brother Abid Hussain; they were riding Jeep No.FDJ 1128 and when about 6‑30 in the evening they reached the bazaar of village Kariwala they ‑found that a Surf Pick‑up bearing Registration No.4422 of gray colour had been parked in a slanting position at the road so as to block the passage; Maratab Ali who was driving the jeep himself got down whereupon, Haider Ali son of Ghulam Ali armed with an automatic rifle, Hakim son of Noor armed with a rifle, Muhammad Ali son of Zafar armed with a .12 bore gun and Razzaq son of Ahmad armed with a rifle, all residents of Kariwala who had been hiding themselves came forward; Haider Ali raised a Lalkara that they had come to avenge their defeat in the elections and fired a burst with his rifle at Maratab Ali hitting him under the navel around the bladder area who fell down; his co‑accused fired at him with their respective weapons causing him injuries on various parts of his body; all the accused persons kept on raising Lalkaras that whosoever would come forward would be done away with and made good their escape in the Pick‑up; Maratab Ali succumed to his injuries soon thereafter. The motive according to the complainant was that Maratab Ali's brother Asmat Pariah had twice defeated Haider Ali petitioner and his father in the elections of Chairman Union Council and Maratab Ail's paternal cousin Liaquat Hayat had defeated Haider Ali in the Election of Nazim and that Maratab Ali had been elected Chairman of Market Committee of Mandi Shah Jewna. The complainant went on to add that Maratab Ali was busy in the election campaign of Syeda Abida Hussain on account of which Haider Ali petitioner and others felt seriously offended. According to the complainant the accused persons were indulging in political terrorism and had created a sense of scare in the area. Resultantly the instant F.I.R. was recorded.

3. The petitioner's application for post arrest bail did not find favour with the learned Addi. Sessions Judge, Jhang who vide order, dated 11‑6‑2004 dismissed the same. Hence this petition.

4. Malik Amjad Pervaiz, the learned counsel for the petitioner in support of petitioner's plea for bail argued that the petitioner had falsely been implicated in the case; that he had been involved in this case on account of political enmity which is apparent even according to the F.I.R. itself; that the complainant party is highly influential and exercises considerable political clout in the area on account of which they were able to get the case registered against the petitioner, etc. although it was the complainant party which had initiated aggression as a result of which Maratab Ali lost his life in the event of Ghulam Abbas the gunman of the petitioner opening fire in self‑defence; that after registration of the false case the petitioner and his co-accused were under a genuine fear that they would be subjected to reprisals and retaliation by the complainant party compelling them to go into hiding so as to escape the wrath of the complainant party; that the petitioner obtained his pre- arrest bail from the Court of Additional Sessions Judge at Jhang and on 21‑7‑2003 when he was appearing for confirmation of his bail before the said Court he formed target of a murderous assault at the hands of the complainant party carried out in the Court room as a result of which he suffered four serious gunshot injuries; that F.I.R. No.336, dated 21‑7‑2003 was registered at the instance of Hassan Raza a nephew of the petitioner for the said incident; that this ghastly incident vindicated the petitioner's assertion that he would come to serious harm at the hands of the complainant party and the incident was sufficient to explain the absence/abscondence of the petitioner and his co‑accused; that the Investigating Officer has finally opined that the petitioner though was present at the scene yet he was empty handed and did not cause any firing as alleged in the F.I.R.; that according to the Investigating Officer it was a fire shot made by Ghulam Abbas co‑accused which had caused the injury in the abdominal/ navel region as mentioned hereinabove; that no recovery has been effected from him. He finally argued that in view of the finding of the Investigating Officer the case of the petitioner becomes one of further inquiry entitling him to the concession of bail. He relied upon, Dr. Muhammad Aslam v. The State 1993 SCMR 2288, Muhammad Ilyas v. Ijaz Ahmad Butt and another 1992 SCMR 1857, Zafar Iqbal v. The State 2002 MLD 454 and Manzoor and 4 others v. The State PLD 1972 SC 81 in support of his contentions.

5. On the other hand Mian Muhammad Sikandar Hayat, the learned counsel for the complainant argued that it was a promptly lodged F.I.R. and a specific role had been attributed to the petitioner; that the injury attributed to the petitioner proved fatal and became the cause of death of the deceased; that there in an unexplained long abscondence of the petitioner; that the complainant and eye witnesses are sticking to the version of the F.I. R. ; that the finding recorded by the investigating Officer that the petitioner was empty handed is not an honest opinion rather the same has been recorded under political influence; that the petitioner as also his co‑accused remained absconders for 10‑1/2 months and thereafter appeared on 27‑6‑2003 after ensuring that they would be dealt with leniently by the Investigating Agency; that after 21‑7‑2003 the petitioner again absconded and applied for his pre- arrest bail only on 24‑4‑2004 which was dismissed on 17‑5‑2004. He argued that the pleas raised by the learned counsel for the petitioner call for deeper appreciation of the material available on the record which cannot be undertaken by this Court while seized of a bail matter. He added that completion of investigation in twenty days' time also shows the complicity of the Investigating Officer with the accused party. He relied on Qurban Ali v. Muhammad Sabir and 2 others (2002 PCr.LJ 394), Arbab Ali v. Khamiso and others (1985 SCMR 195), Asmatullah Khan v. Bazi Khan and another (PLD 1988 SC 621), Najeeb Gul v. Khalid Khan and another (1989 SCMR 899), Haji Muhammad Hanif v. The State (PLD 1992 Lahore 314), Awal Gul v. Zawar Khan etc PLD 1985 SC 402 and Muhammad Sadiq v. Sadiq PLD 1985 SC 182 in support of his arguments.

6. I have considered the arguments of the learned counsel for the parties at some length.

7. In the case of Dr. Muhammad Aslam v. The State (1993 SCMR 2288) the Honourable Supreme Court of Pakistan granted bail to the petitioner in which case two different Deputy Superintendents of Police after investigation had opined about his innocence. In Muhammad Ilyas v. Ijaz Ahmad Butt and another (1992 SCMR 1857) the Hon'ble Supreme Court declined to interfere in the bail granting order of the High Court as the petitioner's name had been placed in column No.2 of the challan and it was held that a person was not an accused person till such time that his name appears in column No.2 of the challan. In the case of Zafar Iqbal v. The State (2002 MLD 454), this Court granted bail to the petitioner as he was found innocent in different investigations and the Court came to the conclusion that although the opinion of the police was not binding on the Court yet it was not irrelevant for the purposes of bail and the benefit of doubt if any should be extended to the accused even at bail stage. Manzoor Ahmad and 4 others v. The State (PLD 1972 SC 81) is a well known as oft‑repeated case in which the Hon'ble apex Court had held that bail was not to be withheld as punishment and further that it was not correct to depend on the ipse dixit of police. These were the precedents on which the learned counsel for the petitioner had placed reliance. Insofar as the learned counsel for the complainant is concerned he placed reliance on the following cases: Qurban Ali v. Muhammad Sabir and 2 others (2002 PCr.LJ 394) wherein this Court had held that opinion of the police regarding innocence of an accused was not binding on the Court and that the Court has to come to its own independent conclusion in the light of the material placed before it; Arbab Ali v. Khamiso and others (1985 SCMR 195), where the apex Court laid down certain guidelines for grant of bail on the basis of further inquiry and held that bail could be allowed only on the principle of further inquiry when the police officer or the Court at any stage of investigation or trial as the case may be came to a definite conclusion that there are no reasonable grounds for believing that the accused had committed a non‑bailable offence; Najeeb Gul v. Khalid Khan and another (1989 SCMR 899) was a case in which the Hon'ble Supreme Court had held that abscondence deprives an accused person of concession of bail unless he gets it as of right under subsection (2) of section 497, Cr.P.C. or the offence is bailable otherwise. The grant of bail as of right under section 497(2), Cr.P.C. is possible only when a finding is rendered that there are no reasonable grounds for believing that an accused has committed the particular offence; Haji Muhammad Hanif v. The State (PLD 1992 Lahore 314) was a revision petition decided by this Court wherein a distinction had been drawn in the expressions "Fact" and "opinion". In the said case, this Court also commented on the evidentiary value of the opinion of a witness with reference to Articles 59 to 65 of the Qanun‑e‑Shahadat Order (10 of 1984); Asmat Ullah Khan v. Bazi Khan and another (PLD 1988 SC 621) was a case in which the Hon'ble Supreme Court while commenting on section 497(2), Cr.P.C. had held that possibility of further inquiry exists almost in every criminal case and is no ground for treating the matter as one under section 497(2), Cr.P.C.; Awal Gul v. Zawar Khan, etc. PLD 1985 SC 402 was a case wherein the Supreme Court held that un‑explained noticeable abscondence of an accused person disentitles him of the concession of bail notwithstanding the merits of the case. Similarly in the case of Muhammad Sadiq v. Sadiq reported in PLD 1985 SC 182 the Hon'ble apex Court had held that an accused person who becomes fugitive from law looses some of the normal rights granted to him by procedural as well as substantive law and disentitles him to concession of bail notwithstanding merits of the case unless period of abscondence is satisfactorily explained.

8. I have carefully gone through the police record brought by Muhammad Attique, S.‑I. Police Station Qadirpur, District Jhang and have noticed that the D.S.P. who had conducted the investigation had recorded his detailed reasons for coming to the conclusion that Haider Ali petitioner, although present at the place of occurrence, was empty‑handed. He has also explained the manner in which the occurrence according to him had taken place after recording the statements of a large number of witnesses. There is no cavil with the proposition that the opinion of the Investigating Officer or the police is not binding on the Court but at the same time it has to be kept in mind that the said opinion being adverse to the prosecution creates doubt about the veracity of its story, moreso if the said opinion had been recorded as a result of investigation, which could not be termed as absurd, arbitrary or fanciful. This is the position of law and the precedents relied upon by both the parties which have been noted hereinabove also lay dawn this principle. In this connection reference can also be made to the case of Muhammad Afzal v. Nazir Ahmad and others (1984 SCMR 429) wherein the Hon'ble Supreme Court had held that the relevancy to the question of bail of the opinion of the investigating agency in regard to the complicity of an accused person will depend on the soundness of material upon which it was based and that if the investigation brings to light facts which may furnish prima facie reasonable ground for believing that an accused though named in the F.I.R. is not guilty, the opinion of the Investigating Officer based on such facts will be relevant. Similarly in the case of Ameer Ali and another v. The State (1984 SCMR 521), the Hon'ble Supreme Court granted bail to the petitioners on the basis of opinion recorded by the Investigating Officer that accused persons were not present at the scene of occurrence.

9. Admittedly there is enmity between the parties which is borne out from the FIR itself. In so far as the abscondence of the petitioner is concerned, his plea that after the occurrence he feared a serious backlash from the complainant party and had been hiding himself to save his life, cannot be lightly brushed aside keeping in view the clash which took place after his surrender in the Court room of the Addl. Sessions Judge in which he suffered serious gunshot injuries. In this situation his abscondence cannot be termed as unexplained so as to disentitle him to the normal rights to which an accused person is otherwise entitled. The precedents cited by the learned counsel for the petitioner which have been noted hereinabove do advance his case for the grant of bail. I would not further like to dwell on the merits of the case as any further comment would fall within the realm of deeper appreciation of the material available on the record. Suffice it to say that in the given facts and circumstances of the case the petitioner has made out a case for further inquiry within the meanings of subsection (2) of section 497, Cr.P.C.

10. Resultantly, this petition is allowed and the petitioner is admitted to bail provided he furnishes bail bonds in the sum of Rs.100,000 (Rupees one lac) with two sureties each in the like amount to the satisfaction of the learned trial Court.

11. Before parting with this order I would like to add here that the observations made hereinabove are tentative in nature and are not designed to influence the course of the trial in any manner. H.B.T./H‑43/L Bail granted.