2017 PLP 335 (YLRN)

SHAHID HAMEED DAR, J.

The allegation against the petitioner, Muhammad Nadeem, as per FIR No.332/2013, dated 23.04.2013, under sections 302,

34. P.P.C., registered at Police Station Factory Area, Sheikhupura is that he being armed with pistol, joined by his armed co-accused Muhammad Arfan jointly fired at Muhammad Yaqub, real brother of Abdul Shakoor (complainant) and sent him reeling to the ground in severe injured condition; Muhammad Yaqub succumbed to the injuries at the spot; the motive behind the occurrence was that Muhammad Yaqub (deceased) had contracted run-away marriage with sister-in-law of Muhammad Nadeem accused, namely Mst. Fatima Bibi.

2. Learned counsel for the petitioner has submitted that allegation against the petitioner is baseless and he has repeatedly been held innocent by the investigating officers in two different rounds of investigation; the petitioner underwent physical remand for 14 days but nothing was recovered at his instance; the allegation against the petitioner is one of collective and generalized nature; three accused of this case including the petitioner, who are real brothers inter se have been found innocent during the course of investigation which speaks volumes about the falsehood of the story of FIR; in support of petitioner's plea of alibi, the factory-owner and some other employees of the factory appeared before the investigating officer to state that he was working in the factory at the relevant time of the occurrence; the petitioner and his two brothers namely Qari Muhammad Naeem and Shahid Saleem stood married in one house, hence, Mst.Fatima Bibi was sister-in-law of all; the petitioner's case calls for further probe into his guilt within the scope of section 497(2), Cr.P.C., therefore, alleged abscondence of the petitioner may not impede his quest for bail. Relies on Meeran Bux v. The State and another (PLD 1989 SC 347).

3. On the other hand, learned Deputy Prosecutor General Punjab assisted by learned counsel for the complainant has opposed this petition with the contention that the petitioner joined by his co-accused fired at the chest, shoulder and other parts of body of Muhammad Yaqub and murdered him in a callous manner at the spot; the statements of the eye-witnesses, Muhammad Siddique and Atta-ul-Mana'am are incriminatory in nature against the petitioner; the medical evidence is consistent with the eye-witness account; the petitioner remained an absconder in this case for about 1-3/4 years and police submitted challan under section 512, Cr.P.C. against him and his absconding co-accused on 20.06.2013; the plea of alibi is a circumstance, which may only be dealt with by the learned trial court after recording evidence of the parties at trial; the opinion of the investigating officer has been capriciously carved out and it does not bind the court in any manner. Relies on Ghulam Ahmed Chishti v. The State and another (2013 SCMR 385).

4. After hearing the learned counsel for the parties and perusing the record, it is observed that the petitioner's involvement in this case, notwithstanding his (collective) role in the FIR had been held dubious not only by the first investigating officer, but also by the Organized Crimes Cell (RIB Sheikhupura). It was the complainant side, which being dissatisfied with the investigation of the local police, sought first change of investigation under Article 18(6) of the Police Order 2002 and got it transferred to the Organized Crimes Cell, but outcome of the investigation remained unchanged. The opinion of the investigating officer certainly does not bind the court in any manner but its efficacy may tentatively be glanced at by taking into account the material, collected during the course of investigation. The petitioner, as per his contention, worked in a factory, HBH Engineering Manufacturers, Alhamd Garden, Nain Sukh, Saggian Road, Lahore, which manufactured automobile spare-parts and he established his presence there at the relevant time of the occurrence, through statements of the owner/proprietor of the factory and certain other employees thereof. The subsequent investigating officer verified the plea of the petitioner not only on merits but he also made arrangements for special oath, on complainant party's insistence, as to innocence of the accused/petitioner, from a notable of the area, who silenced them by reaching out to their demand in unequivocal terms. The first investigating officer, however, recorded his finding as to petitioner's plea of alibi purely on merits.

5. Learned counsel for the complainant has relied on Ghulam Ahmad Chishti's case (supra) with the contention that plea of alibi of the petitioner could only be scanned by the learned trial court after recording evidence of the parties at trial and opinion of the investigating officer in this context may not be relevant here. The facts of the said case and that of the case-in-hand stand miles apart inter-se, as Ghulam Ahmad Chishti accused had been assigned specific role of causing fatal injuries to the deceased besides, he had been held guilty by the investigating officer in terms of being an abettor of the crime. No such individual/specific role has been attributed to the petitioner nor he has been held an abettor of the occurrence. In the attending circumstances hereof, the ratio of Meeran Bux' case (PLD 1989 SC 347) would be more relevant to adhere to, as his plea of alibi had been verified by the investigating officer, on the basis of which facility of pre-arrest bail, as granted to him by the trial court, was restored in his favour by the Hon'ble Supreme Court of Pakistan, after it had been recalled by the Hon'ble Sindh High Court. Needless to mention, Meeran Bux had allegedly caused a firearm injury at the left leg/thigh of the deceased.

6. The petitioner underwent physical remand for fourteen days but nothing was recovered at his instance in the said interval. Four persons including the petitioner have been nominated as accused in the FIR and they all are real brothers, inter-se. Three of them as argued by the learned counsel for the petitioner and not denied by the other side, had been married in the same house with three real daughters of Muhammad Younas, who incidentally was the father-in-law of Muhammad Yaqub deceased as well. The complainant cleverly mentioned only the name of the petitioner, when he stated about the motive part of the incident, otherwise he knew it well that wives of the said three accused were real sisters of Mst.Fatima Bibi, the third wife on the trot, of Muhammad Yaqub deceased. Excepting Muhammad Irfan accused all others including the petitioner have been found innocent in both the rounds of investigation. The petitioner was arrested in this case on 4.1.2015 and he is no more needed by the police for any' recovery etc. Prima-facie sufficient reasons exist to believe that his case constitutes need for further probe into his guilt within the scope of section 497(2) Cr.P.C., hence, alleged factum of his abscondence for about 1-3/4 years, would not mean much at this stage.

7. For the discussion, supra, I accept this application and admit the petitioner to post-arrest bail subject to furnishing bail bonds in the sum of Rs.5,00,000/- (rupees five lacs) with two sureties each in the like amount to the satisfaction of the learned trial court. SL/M-185/L Application allowed.