2002 PLP 454 (MLD)

Sardar Mehboob and Tahir Mehmood for the Complainant. Muhammad Tayyub Ghauri for the State. Zafar Iqbal, petitioner has sought his post‑arrest bail in a case F. I. R. No.40 of 2001, registered on 30‑1‑2001, at Police Station Gulgasht, Multan, for an offence under section 459, P.P.C. 2: The F.I. R. was recorded on the statement of one Muhammad Akram son of Rehmat Ullah on 30‑1‑2001 at about,2‑40 a.m. (during night).

3. According to the contents of the F.I.R., the complainant was asleep in, his house alongwith his children, mother, sister and two guests namely Bashir Ahmad and Maqbool Ahmed, when at about 1‑30 a.m. six persons out of whom two were wearing masks trespassed into the house of the complainant. At that time mother of the complainant got up to ' ease herself and went outside in the courtyard. She saw the afore‑referred accused persons in the courtyard. All the accused were equipped with fire‑arms. Out of them two persons, who were wearing mask caught hold the mother of the complainant from her neck and inquired about Muhammad Bashir brother of the complainant and Munir Ahmad and Muhammad Akram, maternal nephews of the complainant and also demanded that they should be brought out. It is further stated that on the hue and cry of the mother, the complainant went outside and saw that two accused, who were wearing masks, were holding his mother and that the other accused with their fire‑arms were standing in the courtyard. During resistance put by the complainant, the mask of one of the accused was removed and he was identified as Zafar Iqbal, Head Constable. Police Lines (petitioner). It is further stated to the F.I.R. that mask of the other person was also removed and the complainant could identify him. Meanwhile, the guest, who were sleeping on the roof of `Chobara' started climbing down, the accused Zafar Iqbal, who was armed with a rifle gave butt blow on the head of the complainant and also demanded that Muhammad Bashir and other should be brought out, as they had come to teach them a lesson. However, according to the F.I.R., Zafar Iqbal, accused ordered the guests to go back and threatened that otherwise they would be fired upon. It is further that alarm raised by the inmates of the house attracted the neighbors of the complainant and they joined alarm saying `The Dacoits, The Dacoits'. Thereafter the accused ran towards the street and fired at the persons, who had assembled there. Resultantly, Haq Nawaz and Sabir P .Ws. received serious injuries and the accused succeeded in making good their escape. It is also stated in the F.I.R. that on the night of occurrence Muhammad Bashir brother of the complainant and afore‑referred, Munir Ahmed were invited by the mother of the complainant and they were present in house and gossiping as guests. At about 10‑00 p.m. somebody had rang up at the house of Muhammad Bashir inquiring the whereabouts of Muhammad Bashir and Munir Ahmad. He was informed that they had gone to visit the mother of the complainant. It is also stated in the F.I.R. that the complainant got this information in the morning.

4. The motive as given in the F.I.R. was that Zafar Iqbal, who was a close relative of the complainant had demanded the hand of the daughter Muahammad Bashir, brother of the complainant, but as Muhammad Bashir refused and married his daughter on 28‑1‑2001 with Munir Ahmad, his material nephew this infuriated Zafar Iqbal, accused/petitioner, who alongwith his companions committed the occurrence.

5. The petitioner was arrested in this case on 21‑2‑2001 and after completion of the investigation was sent up to Judicial Lock‑up. Admittedly the matter is still under investigation and the trial has not commenced so far.

6. The learned counsel for the petitioner in support of this petition has stated that the story )f the F.I.R. was not plausible; that Zafar Iqbal had been involved in his case due to existing enmity, that nothing was recovered from the petitioner during investigation; that during various investigations conducted by the different police agencies, the petitioner was found innocent; and a discharge report was prepared and submitted before the Magistrate, who vide his order, dated 14‑6‑2001 did not agree with the said discharge report but the fact remained that the petitioner was found innocent and the benefit should have be extended to him.

7. It has been argued on behalf of the complainant that the petitioner was named in the F.I.R.; that he had committed a heinous offence; that he was armed with a rifle and caused injury to the complainant; that the petitioner had a motive and grievance that is why, in order to teach a lesson to the inmates of the house he committed the offence; that the police had been taking sides with the petitioner, as he was a Police Head Constable and for that reason he was declared innocent during investigation; that the real facts of the case could not be brought on the surface as the police officials sided with the petitioner; that despite the order of this Court so far no complete challan has been submitted before any Court of law and that section 459, P.P.C. falls within the ambit of prohibitory clause of section 497, Cr.P.C., therefore, the bail application of the petitioner should not be accepted.

8. The learned State Counsel has adopted the arguments advanced by the learned counsel for the complainant.

9. I have heard the learned counsel for the parties at length and perused the record. It has been noticed that although allegedly the petitioner alongwith five others armed with deadly weapons had trespassed into the house of the complainant yet there is no apparent reason available on the record for commission of this offence, as none from the house received any fire‑arm injury nor anything was stolen nor any attempt was made to abduct any inmate of the house. Two independent P. Ws. Haq Nawaz and Sabir who received injuries at the hands of the accused have stated in their statements under section 161, Cr.P.C., that they had not seen Zafar Iqbal on the scene of occurrence nor they could identify the persons whose fire hit them. They have stated that the complainant, who had come out of his house, was shouting that it was Zafar Iqbal, who had committed the offence. According to the F.I.R., Zafar Iqbal gave a blow with the butt of his rifle on the head of the complainant only after the complainant had grappled with him. It is strange that the remaining five persons kept standing and, did nothing. The petitioner had joined the investigating and during investigation no incriminating material was recovered from him. Muhammad Younas Javed S.I., during investigation, who initially investigated the case, found the petitioner innocent. Thereafter, Inspector/S.H.O. investigated the case and he also found the petitioner innocent. On the application of the complainant the investigation of the case was transferred to the D.S.P., Kotwali, who ordered the arrest of the petitioner and thereafter on the application of the complainant the investigation was entrusted to the Range Crime Branch, Multan Division, Multan, which also found the petitioner to be innocent in the aforeferred F.I.R. Zafar lqbal remained on physical remand from 21‑2‑2001 to 8‑3‑2001 and it was after completion of 14 days of physical remand, he was remanded to Judicial Lock‑up. All the Police Officers were consistent in their view that the petitioner was innocent and has been falsely involved in the case. A discharge report was prepared vis‑a‑vis the petitioner and the same was forwarded by the S. S. P. ".

10. The opinion of the police admittedly is not binding upon the Courts but at the same hand it cannot be said that the same is not relevant for the purposes of bail and the benefit of doubt, if any, should be extended to the accused even at, bail stage. I am fortified in my view by relying upon the dictum aid down by the Hon'ble Supreme Court of Pakistan in the cases of Dr. Muhammad Aslam v. The State (1993 SCMR 2288), Muhammad Ilyas v. Ijaz Ahmad Butt and another (1992 SCMR 1857) and Manzoor and four others v. The State (PLD 1972 SC 81).

11. It is also pertinent to note that‑ if the complainant was dissatisfied with the investigation of the police and if the Irate story was not brought on the surface by the police then he had an effective remedy by way of filing a complaint, which so far has not been filed.

12. For what has been discussed above, I am of the view that the allegations levelled against the petitioner need further probe and inquiry within the purview of subsection (2) of section 497, Cr.P.C. Therefore, I am inclined to allow this petition and admit the petitioner to bail, subject to his tendering bail bonds in the sum of Rs. one lac, with two sureties each in the like amount to the satisfaction of the trial Court. N.H.Q./Z‑77/L Bail granted.