2014 PLP 1669 (SCMR)

IQBAL HAMEEDUR RAHMAN, J.

The petitioner seeks his post-arrest bail through the instant Criminal Petition by setting aside the order dated 17-4-2014 passed by the Lahore High Court, Multan Bench, Multan, in Criminal Miscellaneous No. 1268-B of 2014, whereby the petitioner has been declined post- arrest bail.

2. The brief facts of the case are that the petitioner along with others were involved in case F.I.R. No.57 of 2014 dated 11-2-2014, registered under sections 324, 353, 186, 148, 149, P.P.C. and 7 of Anti-Terrorism Act, 1997 at Police Station Mitroo, Vehari. The said crime report had been lodged by one Alam Sher, S.I./respondent No.2/complainant, with the allegation that between the night of 10-2-2014 at about 1-10 a.m., he along with other Police officials was on patrol duty and also on account of spy information in pursuit to apprehend the persons involved in case F.I.R. No. 787 of 2012 dated 30-12-2012, who were stated to be present at the Bheni of Ghulam Shabbir. It was further stated that when the raid was conducted upon the said Bheni, Jamshed, co-accused, armed with rifle, Munir Ahmad, petitioner, and Naveed, co-accused, armed with pistols fired upon the raiding Police party, which hit the complainant on his left shoulder. It was further alleged that the firing on the Police party created sense of fear and terror in the general public and subsequently all of the accused fled from the scene of occurrence. The petitioner along with co-accused in the first instance sought post-arrest bail before the District and Sessions Judge/Judge, Anti-Terrorism Court-I, Multan, who vide his order dated 5-3-2014 allowed bail to Naveed, co-accused, on the ground of his age whereas bail of the petitioner was declined. In view of the same, the petitioner approached the High Court for grant of bail, but the same has also been refused by it vide impugned order dated 17-4-2014, hence this petition.

3. Mr. Khadim Nadeem Malik, learned counsel for the petitioner, at the very outset stated that the petitioner has falsely been implicated by the Police on their failure to arrest the Proclaimed Offender, Jamshed, in case F.I.R. No. 787/2012. He further contended that as per medical report the complainant has received a fire arm injury wound on front of his left shoulder 1 cm x 1 cm going deep, but later on a bullet is stated to have been recovered from the arm and there was no exit wound. The petitioner is a 65 year old person who has been falsely involved and arrested in the instant case just on the annoyance of the Police party.

4. On the other hand, Ch. Zubair Ahmed Farooq, learned Additional Prosecutor-General for the State, vehemently opposed this petition and contended that the petitioner has been nominated in the F.I.R. with a specific role and alleged to have made a straight fire upon the complainant from a distance of about 5/6 feet.

5. Heard. We have gone through the orders of the Courts below and have perused the record.

6. According to the F.I.R., the petitioner and his co-accused fired shots at the complainant with their respective arms but they went amiss. The petitioner fired yet another shot with his 30 bore pistol from a distance of 5/6 feet which hit the complainant causing entry wound of 1 cm x 1 cm on the front of his shoulder. A look at the Medico-legal Report shows that this wound has no exit. There is no fracture either. Absence of exit and fracture prima facie shows that the shot was fired from a far off point. Therefore, the question, whether account furnished by the complainant is compatible with the surrounding circumstances of the case, is one of further inquiry.

7. Even if the complainant's version is taken to be true on the face of it, the question why did the raiding party fail to react to the firing of the accused party further makes the case arguable for the purpose. Moreover, when the occurrence admittedly took place in the dead of the night and no source of light finds mention in the F.I.R., in the absence whereof how the assailants could be seen and identified, is yet another question calling further inquiry.

8. In the above perspective, by majority of two to one (Justice Anwar Zaheer Jamali dissenting), this petition is converted into appeal and allowed, the impugned order is set aside and the petitioner is admitted to bail on his furnishing surety in the sum of Rs.100,000 (Rupees one hundred thousand) and P.R. bonds in the like amount to the satisfaction of the trial Court. These are the detailed reasons for our short order of even date. I have appended by separate note of dissenting. Sd/- Anwar Zaheer Jamali, J. Sd/- Ejaz Afzal Khan, J. Sd/- Iqbal Hameed-ur-Rahman, J. ANWAR ZAHEER JAMALI, J.

In terms of the short order dated 3-6-2014, as per majority view of the Bench, the petitioner Munir Ahmad was admitted to bail, while I had dismissed his bail petition for the reasons to be set out separately. The same are recorded as under:

2. The facts divulged from the contents of F.I.R. No.57 of 2014 dated 11-2-2014, registered at Police Station Mitroo, District Vehari, are that complainant Alam Sher/S.I. Police Station Mitroo lodged such F.I.R. at 1.10 hours, about the incident, which had occurred on the same midnight at a place, which is about eight kilometers in the south from the Police Station near Chak No.43. As per narration of facts, he, along with police personnel Husnain Abbas (405/C), armed with rifle, Abid Hussain (336/C), armed with pistol, Sharafat Ali (1427/C) armed with pistol and Mumtaz Hussain (1248/C) armed with rifle, while on patrolling and checking in the official vehicle bearing registration No.6483/VRH, driven by Muhammad Aamir, got spy information that proclaimed offender Jamshed son of Muhammad Ali, involved in Crime No.787 of 2012 dated 30-12-2012 of Police Station Mitroo for commission of offence under sections 302/324/109/148/149, P.P.C. along with Ghulam Shabbir were available near Chak No.109-WB. They accordingly proceeded there to arrest them. When they reached near the land of Umar Iqbal Kachhi within the jurisdiction of Mouza Shatab Garh, they found that the said criminals armed with rifles along with Naveed and Munir Ahmed (present petitioner) armed with pistols and three other unknown persons armed with firearms were present at the spot. When they were asked to stop, three of them (Jamshed, Naveed and Munir) started firing at the police party. In response to it, police party, including the complainant, tried to get down from the vehicle, but during that process, within the sight of complainant, petitioner Munir Ahmad fired a pistol shot at him, which hit him on his left shoulder, and under the cover of firing all the culprits managed to escape, causing serious fear to the residents of the area. The complainant immediately rushed to District Hospital, Vehari and also promptly lodged the F.I.R.

3. The present petitioner along with co-accused Naveed, against whom the challan of this crime has been submitted before the Court of Sessions Judge/Judge Anti-Terrorism Court, Multan, moved an application for grant of post arrest bail, which was partly allowed to the extent of co-accused Naveed on the ground of his tender age of 14/15 years. Accordingly, he was admitted to bail, while the bail plea of present petitioner was rejected. The petitioner thereafter moved Criminal Miscellaneous Application No.1268-B of 2014 before the Lahore High Court, Multan Bench, Multan for grant of post arrest bail in the said crime, which was rejected by a learned Division Bench of the Lahore High Court, inter alia, for the following reasons:-- "The petitioner was identified at the spot, medical legal report, of the injured/victim prima facie lends corroboration to the prosecution case and during course of investigation the petitioner has been found involved in the commission of an offence of serious nature. So far there is nothing on the file to indicate any malice or grudge on the part of the complainant to falsely involve the petitioner in an offence of such intensity. We therefore, see no merit to release the petitioner on bail at this stage. Bail application, therefore, is dismissed."

4. I have heard the arguments of learned Advocate Supreme Court for the petitioner and the learned Additional Prosecutor-General, Punjab on behalf of respondent No.1, while respondent No.2 complainant/ injured of the occurrence has appeared in person and shown his crippled left arm due to such shoulder injury. Some salient features of the case, which, in my opinion, at this stage disentitle the present petitioner for grant of post arrest bail are as under:-- (a) The F.I.R. of the incident has been promptly lodged by the injured complainant at the Police Station within about one hour; (b) As per contents of the F.I.R., petitioner is the nominated accused with specific role that he was present at the place of occurrence, duly armed with pistol and made direct fire at the complainant/Alam Sher, S.I. within his sight, which resulted in firearm injury on his left shoulder; (c) Complainant in the crime is none else but the only injured of the occurrence, having no ulterior motive to spare the actual culprits, who caused such serious injury to him on the vital part of his body and to falsely implicate the present petitioner Munir Ahmad, who is stated to be the servant of Shabbir, father of other accused Naveed. Had there been mala fide or any ulterior motive in the mind of complainant, prima facie, he could have implicated Shabbir with the role of firing at him instead of his servant; (d) The assertion of causing firearm injury to the complainant by the petitioner is fully supported from the medical and x-ray reports, which reveal that a piece of metal was found at the seat of injury on the left shoulder of complainant; (e) There is no reference in the F.I.R. that what specific kind of pistol was used by the petitioner for making fire at the injured complainant/Alam Sher, S.I. and from what distance such fire was made. Thus, in this context at this stage no guess work could be made to bring the case of petitioner within the ambit of further enquiry as it will amount to deeper appreciation of evidence, which is not permissible at bail stage; (f) Other eye-witnesses of the occurrence, whose presence at the place of occurrence is also admitted in the affidavits filed on behalf of accused party, have fully supported the case of prosecution in their respective 161, Cr.P.C. statements; (g) The medical report of injured/complainant available on the Court record supports his stance that he suffered a fire shot injury on his left shoulder, which is not a self inflicted injury; (h) The petitioner is involved in the commission of a crime, which falls within the prohibitory clause of section 497(1), Cr.P.C. providing punishment upto 10 years and at this stage there is no material available on record to disbelieve the assertion of the complainant; (i) As per prosecution case, petitioner was arrested 6/7 days after the occurrence and recovery of crime weapon was made on his pointation, which, along with empties recovered from the place of occurrence has been sent to the Forensic Science Laboratory for its report, which is awaited; (j) The petitioner along with this petition has filed affidavits of fifteen residents of the Chak, where the incident has occurred to prove his innocence. However, all of them have confirmed that the incident had occurred at the place, which has been disclosed by the complainant in the F.I.R. and at that time he had sustained a fire-arm injury. These deponents have also confirmed the presence of other police personnel, who are eye-witnesses of the occurrence, as they were accompanying the complainant. Presence of these persons is further affirmed from the complaint of Shabbir son of Ghulam Abbas, copy whereof has been placed on record at pages 24/25 of the Court file. (k) The exercise of discretion by the two Courts for the purpose of grant or refusal of bail, when based on proper appreciation of available case record and the applicable law is not to be disturbed lightly for the reason that another view of the matter was also possible, unless such exercise of discretion was found to be arbitrary, fanciful or result of misreading of record or the applicable provisions of law. In the present case, nothing of this sort is visible from the case record, which may justify reversion of such concurrent exercise of discretion by the two Courts against the petitioner, which otherwise seem to be based on sound reasons.

5. Keeping in view the above stated facts and the settled principle of law that at bail stage deeper appreciation of evidence is not permissible, no case for further enquiry qua grant of bail is made out.

6. For the above reasons, I have dismissed this criminal petition and refused leave to appeal. Sd/- Anwar Zaheer Jamali, J. MWA/M-40/SC Bail granted.