2003 P Cr (PLP)

N.A. Butt for the Complainant. This application for bail after arrest has been filed on behalf of Nasir Baig petitioner who is involved in case F.I.R. No.78 of 2001, registered on 10-4-2001 at Police Station Mandi Ahmad Abad, District Okara, under section 302/324, P.P.C.

2. The F.I.R. was lodged by one Mirza Nazim Baig stating therein that a day before i.e. on 9-4-2001, he alongwith Ajmal Baig, Mirza Aslam Baig and Mirza Abbas Baig, were returning to his house after offering `Fateha' on the death of a friend and when after `Maghrab' prayer's time they reached on a Pucca road in the land belonging to Mirza Ahmed Baig, they saw that Nasir Baig, and Riaz Baig who were his real brothers, were exchanging hot words. They started moving towards them, but they were about 5/6 Karatits away from them when Bagga alias Bagri accused caught hold of Riaz Baig in his grasp while Nasir Baig placed barrel of his .12-bore gun on the chest of Riaz Baig and fired. In the meanwhile; Muhammad Ali accused fired with the gun .12 bore which also hit Riaz Baig in his chest and he fell down. Thereafter, the accused fled away from the spot, brandishing their arms. The occurrence was witnessed besides the complainant by Ajmal Baig, Mirza Aslam Baig and Mirza Abbas Baig P.Ws.

3. In the F.I.R. it yeas stated that the motive for the occurrence was dispute concerning the partition of property.

4. Arguments have been heard and-record perused.

5. The learned counsel for the petitioner has argued that the medical evidence in this case was in conflict with the contents of the F.I.R that the mother of the deceased Mst. Aysha Bibi who is `Walia' of the deceased Riaz Baig had made a statement before the learned Additional Sessions Judge, Depalpur on 16-2-2002, to the effect that she had compounded the offence and had forgiven the petitioner and Muhammad Ali co-accused and that she had also stated that she had waived the right of Qisas and Diyat and had no objection if the petitioner and Muhammad Ali co-accused were released on bail. It was further submitted by him that Mirza Nazim Baig who is the complainant in this case had also made a statement before the learned Additional Sessions Judge on 16-2-2002 that it was actually an unseen occurrence and he had involved the petitioner and Muhammad Ali co-accused at the instance of his step-uncle Mirza Aslam Baig. Another eye-witness namely Mirza Abbas Baig had stated before the aforesaid Court that he had not witnessed the occurrence; that the name of father of two P.Ws. i.e. Ajmal Baig and Mirza Aslam Baig was not mentioned in the F.I.R., and the complainant had sworn an affidavit on 10-4-2001 giving correct parentage of the said P.Ws.; that the complainant in his affidavit had stated that the name of the father of Mirza Ajmal Baig was Mirza Atta Muhammad while the name of father of Mirza Aslam Baig was Mirza Jaman and that both the paid witnesses had sworn affidavits exonerating the present petitioner in this case; that the step-uncle of the petitioner i.e. Mirza Aslam Baig is inimical towards, and that two daughters of Mirza Aslam Baig were married with the petitioner and the deceased was one of his daughters i.e. Sugran Bibi who is the wife of the petitioner had alienated the land measuring 12/13 acres in favour of the petitioner and this had caused annoyance to Mirza Aslam Baig and who was putting presence for the return of the said land. Mst. Sugran Bibi had later filed a suit against the petitioner for the cancellation of mutation concerning the aforesaid land and this indicates the enmity of the petitioner with the so-called eye-witnesses of the occurrence; that there is inordinate delay of 13/14 hours in lodging the F.I.R. and which is, absolutely unexplained.

6. Learned counsel for the petitioner has argued that it is clearly a case of further enquiry and the petitioner is entitled to the concession of bail.

7. On the other hand the learned counsel for the complainant and the learned counsel for the State have resisted the application. I have carefully considered the arguments and have also gone through the record.

8. Admittedly Mst. Ayesha Bibi, the mother of the deceased who had made statement in the Court of learned A.S.-I. in favour of Mirza Nasir Baig petitioner is not the only legal heir of the deceased. The deceased had also left a widow and his children. Although the complainant who is brother of the accused has filed an affidavit in his favour in the Court of learned A.S.-I. and although Mirza Abbas Baig P.W. may have also filed an affidavit to the effect that he had not witnessed the occurrence, yet there are other eye-witnesses in the field. The deceased was the real brother of Mirza Nasir Baig petitioner and thus the situation in which the mother of the deceased has filed an affidavit in favour of the petitioner is quite understandable. The complainant is also the brother of the deceased as well as of the accused.

9. As already mentioned above, the other legal heirs of the deceased i.e. wife and children of the deceased and other eye-witnesses of the occurrence are still in the field. The petitioner is alleged to have fired the fatal shot at the deceased. Under the circumstances, there is hardly any justification for the grant of bail to the petitioner. The bail application is accordingly dismissed. H.B.T./N-301/L Bail application dismissed.