2001 PLP 1934 (YLR)

Sardar Mushtaq Ahmed Khan for Petitioner. Rana Muhammad Anwar Khan for the State. Through this application, petitioner seeks bail after arrest in case F.I.R No.61 of 2001, dated '19-3-2001 at Police Station B-Division, Gujrat, under section 302/34, P.P.C, on the statement of Farrakh Hussain.

2. The brief facts of the case are that a written application was moved by the complainant that on 19-2-2001 at 7-00 p.m. the complainant alongwith Azhar Iqbal brother and one Akram were passing through Muhallah Chah Trehng to their house situated in Kalupura, when they were passing in front of the house of the present petitioner, then one Goshi co-accused, his elder brother, name not known, could be recognized on appearance before the complainant, and the present petitioner stood there. The elder brother of Goshi raised lalkara that Azhar Iqbal should not go alive, and kill him. Goshi and the present petitioner fired with their fire arms. The fires of Goshi hit Azhar Iqbal on his arm and the fires of present petitioner hit on the head of Azhar Iqbal. The brother of the complainant succumbed to serious injuries and fell down on the ground. The accused persons felt that the injured Azhar Iqbal had died and they flew away from the spots. The motive behind this occurrence was stated by the complainant that the brother of the complainant Azhar Iqbal had given Rs.5,000 to the present petitioner as loan and on demand a quarrel took place on 16-7-2001. The accused persons in order to take revenge committed this offence with an intention to murder Azhar Iqbal. Later on, the injured Azhaq Iqbal died and the offence was amended as 302/34, P.P.C.

3. Learned counsel, for the petitioner contends that the three accused were involved in this case and it was urged that Kamran had fired at the deceased which hit him on his arm. Mubashar accused was attributed role of lalkara. During the investigation, a different story came forward in which police had opined that the deceased Azhar Iqbal who was a desperate person involved in number of criminal cases has fired at the petitioner first and then the petitioner fired at the deceased. Kamran alias Goshi and Mubashar were found to be incorrect and have been released on bail. Learned counsel for the petitioner contends that in such-like circumstances the case of the petitioner is of further inquiry covered by subsection (2) of section 497, Cr.P.C. and the petitioner is entitled to grant of bail.

4. Learned State counsel has opposed the bail application on the ground that the petitioner is mentioned in the, F.I.R and specific role has been attributed to him. The petitioner in involved in a murder case and he is not entitled to the grant of bail.

5. I have heard learned counsel for the parties and perused the record. The allegations levelled against the petitioner are that he fired at the deceased hitting him on his head which is fatal injury resulting in the death of Azhar Iqbal. F.I.R was lodged within one hour after the occurrence on the statement of the brother of the deceased in which the above said role has been ascribed to the petitioner. The contention of the learned counsel for the petitioner that the deceased had firstly fired at the petitioner and the petitioner in order to save his life, had exercised his right of self-defence and fired at the deceased cannot be considered as a ground for bail after arrest in such a heinous offence merely on the opinion of Investigating Officer which has got no evidentiary value. The petitioner is responsible for the death of Azhar Iqbal. The grounds urged are not sufficient to make out a case of further inquiry when it is admitted that the petitioner had fired at the deceased. Onus to prove such circumstances is on the petitioner and he will be afforded opportunity to prove his innocence at the time of trial and he will also be afforded an opportunity to cross-examine the witnesses. At this stage, it cannot be said that the petitioner is not guilty of an. offence, which falls within the prohibition contained in subsection (1) of section 497, Cr.P.C. The petitioner is roped in a heinous offence and a has not succeeded in making out a case of further inquiry for the grant of bail after arrest. This petition has no merits and is dismissed. H.B.T./G-108/L Bail application dismissed.