2017 P Cr (PLP)

SHAHID HAMEED DAR, J.

The allegation against the petitioner, Ishtiaq Ahmad as per FIR No.357/15, dated 23.03.2015, under sections 302, 324/34, 109, P.P.C., police station Factory Area (Sheikhupura) is that he being armed with rifle joined by his armed co-accused sprayed volleys of bullets at the complainant party and put Mushtaq, Idrees and Ansar on the ground badly wounded, at 5.30 p.m. on 23.03.2015 in the backdrop of previous political rivalry between the parties; two of the injured, Mushtaq and Idrees succumbed to the injuries one after the other.

2. Muhammad Usman, real son of Idrees (deceased) set up a cross-version in this case on 02.04.2015 for offences under sections 302, 148, 149, P.P.C., after he obtained an order in this regard from the Ex-Officio Justice of Peace, Sheikhupura, against the complainant party, which was recommended for cancellation by the Investigating Officer on 25.07.2015 with the opinion that both the sides had distorted the facts and told lies when they reported their respective versions to the police. After completion of investigation by the local police, the case was investigated by a panel of senior police officials, as a matter of first change of investigation, and they recorded certain findings, whereby they opined that Ishtiaq Ahmad accused-petitioner had shown restraint at the time of the alleged occurrence but his bodyguards, who were untrained, turned violent and made indiscriminate firing at the spot sending three persons, named as above, reeling to the ground in severe injured condition, two out of them, Mushtaq and Idrees died afterwards.

3. The complainant, Muhammad Ismail instituted a private-complaint-case against the accused of the FIR-case on the same facts as narrated by him earlier and so did Muhammad Usman when he too filed private-complaint on 08.07.2015 against the same accused, that he had mentioned in his cross-case. Learned counsel for the petitioner and learned counsel for the complainant believe that both the private complaints have been admitted to regular hearing and respondents, named therein, had been summoned by the trial court to stand trial.

4. Learned counsel for the petitioner has submitted that the role attributed to the petitioner could not be verified by the Investigating Officer and he was found to have gone to his dera to avoid conflict with the other side but his bodyguards did the damage by using the armoury, belonging to him; in a complaint case, filed by Muhammad Usman son of Idrees (deceased) on 08.07.2015 against the complainant party of the FIR-case, all the respondents have been summoned under section 204, Cr.P.C. by the trial court and same is the situation with the private-complaint-case of Muhammad Ismail, complainant of the FIR-case who too being aggrieved of the investigation had filed a private-complaint against the accused-petitioner and others; it is a case of two versions and it cannot be held with certainty at this stage as to who told a lie and who spoke the truth; lastly submits that the petitioner's case calls for further probe into his guilt within the scope of section 497(2), Cr.P.C., therefore he may be granted the relief prayed for.

5. On the contrary, learned Deputy Prosecutor General Punjab assisted by learned counsel for the complainant has argued that the petitioner actively participated in the occurrence and he fired effectively at vital parts of the bodies of Mushtaq (deceased) and Ansar, the injured, which fact is directly corroborated by the medical evidence; the statements of the eye-witnesses under section 161, Cr.P.C. are in line with the text of the FIR and there is hardly any inconsistency between the two in this context; the local police found the story of FIR true but in the later investigation, a sketchy opinion was formulated by the Investigating Officer as regards the accused-petitioner without any supporting material, which was more of a gratuitous kind; the opinion of the Investigating Officer may not bind the court in any manner nor would it have any evidentiary value at all; the petitioner and his co-accused have committed a gruesome offence, therefore, his plea for post arrest bail may not be granted.

6. After hearing the learned counsel for the parties and perusing the record, it is observed that Ishtiaq Ahmad (petitioner) has not only been specifically burdened with the liability of firing into the chest of Mushtaq (deceased) but he also authored firearm injuries on right thigh and right shoulder of Ansar Ali. The necropsy report of Mushtaq deceased revealed that the chest injury on the body of the deceased, together with injury on his thigh was fatal in nature. The medico-legal report of Ansar Ali injured is in line with the story of FIR, as to the injury on his right thigh. It does not, however, show any injury on his right shoulder. Ishtiaq Ahmad (petitioner) also made indiscriminate firing together with his co-accused Imran, which hit a passerby Idrees, who later on succumbed to the injuries at Mayo Hospital, Lahore on 24.3.2015. His postmortem examination report entailed three firearm injuries, but all result of a single shot, as mentioned by the autopsy-performer. Muhammad Usman, real son of Idrees deceased joined investigation in this case for the first time on 2.4.2015, nine days after the alleged occurrence and set up a cross-version against the complainant-party of the FIR-case under sections 302, 148, 149, P.P.C. with the allegation that his father was hit by the firing of both the parties, but it was Muhammad Mushtaq (deceased) and his armed companions, who had committed aggression against Ishtiaq Ahmad (petitioner) and his armed cronies. He also contended that he made a statement to this effect on day one, at the hospital and his thumb impression was obtained on a blank paper, but his statement was dishonestly changed by the police. The record does not show any such statement of Muhammad Usman, having been recorded by the Investigating Officer before 2.4.2015. The cross-case was found false during the course of investigation and all the accused, named therein, were declared innocent by a team of three investigating officers, Muhammad Jawwad Tariq, Additional Superintendent of Police, Sheikhupura being incharge thereof. It was also opined by the investigating team that both the parties had suppressed the real facts as they clashed on the issue of parking of some vehicles and situation aggravated to such an extent that the armed guards of Ishtiaq Ahmad (petitioner), namely Khadim Hussain and Yasin, who were over exuberant and untrained, opened indiscriminate firing, using illicit weaponry of their master and sent three persons crying to the ground, bathed in blood, two out of whom, Muhammad Mushtaq and Idrees died, one on way to the hospital, the same day and the other at Mayo Hospital, Lahore, the following day. The team of three Investigating Officers investigated this case, after first change of investigation under Article 18(6) of the Police Order, 2002 was ordered by the competent authority. Their opinion that Ishtiaq Ahmad (petitioner) remained present at the nearby dera along with his bodyguards, who used his illicit weapons without any commandment from him does not impress much at this stage, as story of cross-version being false had been rejected by them. The injured witness Ansar and other eye-witnesses of the occurrence still supported the prosecution case as contained in the FIR. It would not be out of place to mention here that first Investigating Officer merely deferred arrest of the accused/petitioner and a couple of his co-accused without any plausible reason and he could not finalize the investigation, as having been transferred to the new prober(s).

7. The fact that the private complaints filed by Muhammad Ismail, complainant of FIR-case and Muhammad Usman, complainant of the rejected cross-case have been admitted to regular hearing by the learned trial court does not create any compelling circumstance on the basis of which the petitioner may be held entitled to grant of bail. The delay of nine days in joining the investigation by Muhammad Usman is not an ordinary circumstance, which gathers cruciality, as his contention of making a statement before the Investigating Officer on day of the alleged occurrence at a hospital and putting his thumb impression on a blank paper, is not borne out from the record. He appeared to have taken the decision of siding with the accused-party of the FIR-case and going against the complainant party thereof after days-long deliberations. Mere registration of cross-FIRs or cross-cases cannot be considered a ground for granting bail to an accused, if he otherwise was not entitled to the said relief. Reliance in this regard may be had on Nasir Muhammad Wassan and another v. The State (1992 SCMR 501) and Muhammad Usman and another v. The State (1975 SCMR 391). The petitioner has been found involved in the occurrence, though in a different way, during the course of investigation and his name has been placed in column No.3 of the challan. The offence, he is confronted with, entails capital punishment, besides being gruesome in nature. There exists no reason to believe that his case called for further probe into his guilt within the scope of section 497(2), Cr.P.C.

8. Therefore, I am not inclined to accept this application, which is accordingly dismissed. SL/I-9/L Bail declined.