2004 PLP 1509 (YLR)

Malik Muhammad Qasim Awan for Petitioners. Muhammad Ghias‑ul‑Haq and Waheed Yaqoob Malik for the Complainant. Shaukat Ali Kharral for the State. Through this application under sections 497/498, Cr.P.C. the petitioners seek bail before arrest in case F.I.R. No.628 registered on 17‑12‑2003 under sections 337‑A(ii), 337‑L(ii)/379/148/149. P.P.C. at Police Station, New Multan District Multan.

2. The brief allegation in the F.I.R. is that the complainant is a commission agent in Fruit Market, Multan. On 16‑12‑2003 at about 11‑00 a.m. he was present in his Shop No.83 alongwith Haji Sarfraz and Muhammad Adil Saeed when suddenly Muhammad Azeem petitioner armed with iron‑rod, Muhammad Nadeem his son while armed with pistol .30 bore, Dastageer and Muhammad Tahir sons of Ghulam Farid while armed with hockies came at the spot alongwith three unknown persons who were also armed with Dandas. Muhammad Azeem raised a Lalkara that Muhammad Asif should be taught a lesson for moving an application against them at Police Station, New Multan and gave a iron‑rod hitting on the head of the complainant whereupon blood started oozing from the head. Muhammad Nadeem also gave a butt blow with pistol hitting on the left side of his shoulder. Dastageer gave a hockey blow hitting on the right foot. Then Muhammad Tahir and other accused gave fists and kicks blows to the complainant. In the meanwhile an amount of Rs.13,000 had also fallen on the ground from the front pocket of the complainant which was taken away by Tahir accused. The motive of the occurrence was that 15 days ago Muhammad Adil had moved an application against Muhammad Azeem etc. and due to this reason this occurrence took place.

3. Learned counsel for the petitioners contends that Muhammad Aslam and Zahid Khan were also injured during the occurrence from the side of the accused, who received three injuries each and Zahid Khan received injuries with sharp edged weapon but said injuries were suppressed by the complainant in his statement under section 154, Cr.P.C. It is further contended that during investigation it has been 'found that no offence under section 379, P.P.C. was committed and this offence has been deleted. It is further contended that the police has also come to the conclusion that the petitioners were not armed with any weapon and it was not a pre‑planned occurrence. It is also contended that the petitioners have joined the investigation and one of the Investigating Officer also completed the same, hence sending of the petitioners to jail will serve no purpose for the prosecution and on the other hand the petitioners will suffer an irreparable loss. It is also contended that there was a dispute of payment of Rs.57,000 between petitioner Muhammad Azeem and the complainant who went to his shop to receive the said amount where the complainant party had attacked and due to this reason this occurrence had taken place wherein the accused were not armed with any weapon.

4. On the other hand learned counsel for the complainant opposes this application on the ground that there is no mala fide intention or grudge to falsely implicate the petitioners in the present case and now the Supreme Court of Pakistan has consistently held that bail before arrest can only be granted if there are chances of false implication of the accused. Relies upon Murad Khan v. Fazal‑e‑Subhan and another PLD 1983 SC 82 and Mst. Bibi Rani v. Najabat Ali and another 1994 SCMR page 2277 in support of his contention. It is also contended that during investigation the police has come to the conclusion that the cross‑version was false as Muhammad Aslam and Zahid Khan had not received the injuries during occurrence and the petitioners have been found guilty. It is also contended that the petitioner's party is also involved in case F.I.R. No.81 of 1999 registered under section 448/506/148/149, P.P.C. They are criminal bent of mind and they are not entitled to any extraordinary discretionary relief.

5. Learned State counsel also opposes this application.

6. I have heard the learned counsel for the parties and also perused the record with due care and caution. The medical examination reports of both the persons namely Muhammad Aslam and Zahid Khan have been attached with this petition according to which Muhammad Saleem received three injuries with blunt weapon while Zahid Khan also received three injuries with sharp edged weapon. Both of them were examined by the doctor on 16‑12‑2003 at 3‑15 p.m. on the direction of the Judicial Magistrate while Muhammad Saif Saeed was examined on 16‑12‑2003 al 12‑30 p.m. During investigation number of persons appeared on behalf of both the parties and the petitioners have also joined the investigation. The Investigating Officer has categorically given the finding that the allegation that an amount of Rs.13,000 was stolen by Muhammad Tahir petitioner during occurrence has been found incorrect and this offence was deleted. Similarly the cross‑version of the accused party was also disbelieved. However, it has been held in the same investigation that the petitioners were not armed with any weapon and the occurrence had taken place at the spur of moment wherein only kicks and fists blows were given to the complainant and no specific injury could be attributed to any of the accused as free fight took place between the parties. After the perusal of the police file it is found that the Investigating Officer was not in league with anybody and had given independent finding, which is based on cogent reasons based on the statement of the witnesses appeared during investigation before the Investigating Officer in support of the version of both the parties. Though the opinion of the police is not binding on the Courts yet it can be considered for the purpose of grant or refusal of bail if is based on cogent reasons. The Investigating Officer seems to have considered all the aspects of the case and has come to a definite conclusion after investigation according to which none of the petitioners was armed with any weapon and no injury was specifically attributable to anybody. In such circumstances the case of the prosecution seems to be doubtful to the extent of attributing specific injuries to the accused and the use of the weapon. Even otherwise the petitioners have already joined the investigation and no purpose will be served by sending them to jail specially in the presence of above said finding of the police. The chances of false implication of the petitioners by concocting false story cannot be ruled out due to the previous ill‑will between the parties as Muhammad Adil brother of the complainant earlier had also moved an application before the police against the accused persons and motive is that due to this reason occurrence had taken place. The case‑law cited by the learned counsel for the complainant is not applicable in this case as previous ill‑will existed between the parties and chances of false implication of the petitioners cannot be ruled out.

7. In the above said circumstances the ad interim bail before arrest already granted to the petitioners vide order dated 28‑1‑2004 is hereby confirmed subject to their furnishing fresh bail bonds in the sum of Rs.1,00,000 each with two sureties each in the like amount to the satisfaction of learned Judicial /Ilaqa Magistrate. Ad interm bail before arrest, confirmed. H.B.T./M‑119/L