2007 PLP 2575 (YLR)

HASNAT AHMAD KHAN, J.

Through this petition Rasab Ali, Amir Abbas and Qalab Abbas, petitioners, have sought pre-arrest bail in case F.I.R. No.665 dated 17-11-2006 registered at Police Station Malkwal District, M.B. Din in respect of offences under sections 324/379/ 148/149, P.P.C.

2. Shorn of unnecessary details, the prosecution story as unfurled in the F.I.R. registered al the instance of Mst. Perveen is that on 17th November, 2006 while the Complainant and some other ladies were sitting near their cattle, Mst. Rasulan Bibi, Tahira Jabeen and Mst. Khawar Sultana reached there and started to rough up Nasim Bibi, mother of the complainant. In the meanwhile Rasab Ali, Qalab Abbas and Amer Abbas, petitioners, while armed with .12 bore gun in the company of seven co-accused who were also variously armed reached there. After raising Lalkara/ululation Rasab Ali asked his accomplices to dispossess the complainant party from the plot. Just after raising Lalkara, Rasab Ali petitioner opened fire hitting abdomen of Mst. Nasim Akhtar, injured P.W. Thereafter, he, statedly repeated the fire hitting the buttocks of the same lady. After that Zahid Mehmood, co-accused reportedly caused a fire-arm injury on the shoulder of the swine lady which was followed by the other co-accused who caused blunt weapon injuries on the person of the said lady. Thereafter all the accused cook to their heels but while leaving the place of occurrence they took away the .12 bore gun belonging to Muhammad Akram. Motive behind the unfortunate incident was stated to be a dispute over a plot. 2-A. In support of this petition, learned counsel for the petitioners has contended that at the time of occurrence, Rasab Ali, petitioner, was attending the Court proceedings and therefore, he was falsely implicated in this case. In support of his contention he has made reference to certain affidavits sworn by an Advocate and other persons to show that on the date of occurrence from 8-00 a.m. to 1-00 p.m. the said petitioner remained present at the premises of Sessions Court at M.B. Din for filing an application for bail which was submitted on his behalf on the same day. He adds that the MLC contradicts the prosecution version; that a civil litigation is going on between the parties regarding the same disputed plot before the Revenue Authorities and that during the investigation nine co-accused were declared innocent and therefore, a case of further inquiry into the guilt of the petitioners is made out in favour of the petitioners.

3. Conversely, the learned Deputy Prosecutor-General assisted by the learned counsel for the complainant has strenuously opposed this bail application on the grounds that all the petitioners are specifically named in the F.I.R. with allegation of causing fire-arm injuries to the mother of the complainant; that recovery of fire-arm weapons used by the petitioners is yet to be effected from them; that the offences allegedly committed by the petitioner fall within the prohibitory clause as contained in section 497, Cr.P.C.

4. When queried, the police' officer' present in the Court has submitted that during the investigation eight empties of .12 bore cartridges along with four shells of bullets of 7-MM were recovered from the spot. Similarly five empties of .30 bore bullets were also taken into possession by the investigator.

5. After hearing the arguments advanced by both the parties, I have gathered that the petitioners are specifically named in the F.I.R. All of them in furtherance of their common intention and object had allegedly attacked the complainant party and during the occurrence the injured lady was caused various fire-arm injuries on different parts of her body. The contents of the F.I.R. reveal that the occurrence-had taken place in a. broad-daylight. The F.I.R. was lodged promptly. The recovery of shells of bullets and cartridges from the spot, prima facie supports the prosecution version. As far as the plea of alibi is concerned that does not touch my sense of appreciation as at this stage the same cannot be given much weight. Commenting upon such plea would amount to deeper appreciation which is not permissible while deciding bail application and that too a pre-arrest bail application. Reportedly the place of occurrence is situated at 25-KM from the premises of District Courts, M.B. Din. Possibility of reaching of Rasab Ali at the premises of District Courts of M.B. Din after commission of offence in this modern era cannot be ruled out outrightly, to say the least. According to the complainant he had caused repeated fire-arm injuries on the body of Mst. Nasim Akhtar who, had survived due to her sheer luck.

6. Other two petitioners are also specifically named in the F.I.R. They are prima facie fully responsible for acts and deeds committed by the main co- accused/accomplice. All the eye-witnesses including the injured P.W. had pointed their accusing fingers towards them. Learned counsel for the petitioners has failed to point out the mala fides of the police-for registration of the case. Without establishing mala fides of the police and the complainant and the facts that police were in cahoots with the complainant the relief of pre-arrest bail, which is extraordinary relief, cannot be granted to the accused. In this regard, I am pinning my faith on the cases of Murad Khan v. Fazal Subhan (PLD 1983 SC 82); Zia-ul-Hassan v. The State (PLD 1984 SC 192) and Masood Ahmad alias Muhammad Masood v. The State (2006 SCMR 933). Besides that the recovery of weapons of offence from the petitioners is yet to be effected by the police. Grant of pre-arrest bail is likely to hamper the investigation. 6-A. For all the reasons mentioned above, I have come to the conclusion that the petitioners have failed to make .out a case of pre-arrest bail, to say the least. Consequently the petition in hand is dismissed with the observation that the findings returned in this order would not prejudice the learned trial Court at the relevant time. H.B.T./R-26/L Bail refused.