2004 PLP 72 (MLD)

Date of hearing: 16th June, 2003. Shaukat Ali and Rafaqat Ali, petitioners by filing Criminal Miscellaneous No.2281/B of 2003 and Muhammad Yaqoob‑petitioner by filing Criminal Miscellaneous No.2187‑B of 2003 seek their post‑arrest bail in Crime Report No.205, dated 12‑4‑2002, under sections 148/302/324/149, read with section 109, P.P.C., registered against them and others' with Police Station, Jaranwala, District Faisalabad V the instance of Bashir Ahmad son of Roshan Din. I propose to dispose of both these petitions together through this single order.

2. Earlier bail application bearing Criminal Miscellaneous No.1866‑B of 2003 instituted by Aurangzeb, co‑accused of the petitioner, was dismissed by this Court on 3‑4‑2003.

3. Prosecution version as revealed through contents of F.I.R. can be summarized like this:‑‑ Complainant is a cultivator. Abdul Razzaq son of Din Muhammad and others have four acres of land in Square No. 1 of his Chak. Shafqat Ali son of Salamat Ali purchased two acres from this land. Shaukat Ali paid earnest money of two acres of land and sale‑deed was to be executed till 5‑6‑2002, Killa Nos.24 and 25/1 was in possession of the complainant, whereas in the remaining field wheat crop sown by Abdul Ghafoor son of Ahmad Din is available. Shafqat Ali was determined to acquire possession of the complainant's land. On the fateful day, he came to know that Abdul Hameed son of Naik Muhammad, resident of the same Chak was irrigating his sugarcane crop through tubewell. Bashir Ahmad alongwith his sons Shauhat Ali, Liaqat Ali, and Zulfiqar Ali alongwith Asghar son of Muhammad Hassan, his nephew, forbade Abdul Hameed from irrigating his sugarcane crop. Abdul Hameed left towards Chak. At about 12‑30 p.m. (noon), Shafqat Ali, Shaukat Ali, Rafaqat Ali, Liaqat alias Latto, Yaqoob, Muhammad Afzal, armed with .12 bore guns, Abdul Rehman alias Mana, Aurangzeb, with Repeaters .12 bore, and Muhammad Latif alias Bagoo, with hatchet, arrived at the spot. They started firing while raising lalkaras. Akbar whacked, on head of Liaqat Ali by making a shot with his gun. Aurangzeb fired at Muhammad Asghar, which struck on left side of his waist. Afzal also made a shat, which hit the complainant on his forehead and left cheek. Yaqoob fired a shot hitting left leg of Perwaiz, who fell down. Latif delivered a hatchet blow, which landed on his head. Abdul Rehman also fired with his repeater gun, which hit back of chest of Zulfiqar. Shot made by Shafqat hit Shaukat on his forehead. Rafaqat also fired; which struck Shaukat Ali on his right shoulder. Shaukat Ali accused also made a shot hitting eyes of Shaukat son of the complainant Liaqat Ali alias Lato fired through his gun, which struck Shaukat Ali on his right ear and neck. Thereafter all the accused started firing on Shaukat. Shots made by them hit various organs of his body. A commotion was raised, which attracted Muhammad Aslam son of Muhammad Saleem and Muhammad Sharif son of Raushan, who also witnessed the occurrence in its entirety. The accused while leaving the spot took away Repeater .12 bore of Zulfiqar Ali and .12 bore gun of the complainant. On 27‑3‑2002, complainant alongwith Muhammad Tanveer, maternal nephew, had come to attend the Court of Mr. Nadeem Hassan Waseer, Judge at Jaranwala in connection with some stay order proceedings. Shafqat Ali and Safdar Ali sons of Saif Ali had also come to the same Court. Safdar Ali told Shafqat Ali to kill Shaukat Ali son of the complainant to do away with every day's disputes. Abetment provided by Safdar Ali led to the outbreak of this incident.

4. On being arrested by the police during course of investigation, petitioner in both the petitions, preferred their separate bail applications before a learned Additional Sessions Judge at Jaranwala, who declined them the relief sought for by virtue of his consolidated order dated 11‑3‑2003 on the basis of a variety of reasons embodied in the order itself. Hence, this petition.

5. Learned counsel appearing on behalf of Shaukat Ali and Rafaqat Ali petitioners in their arguments to this Court submitted that the petitioners are brothers inter se and have been falsely implicated in this concocted case. According to him, Shaukat Ali is M.A./M.Ed. and was serving as a teacher in Government High School, Jaranwala. On the date of occurrence, he attended his school to perform his duties as such and did not participate in the occurrence. About fifty persons appeared before the police during course of investigation testifying to his false implication in the case. The police also inspected the attendance register of the school to verify his plea of alibi. He also produced a certificate of Headmaster before the police. Mian Mahmood Ahmad S.I., Khuram Saeed, S.I./S.H.O. and Ijaz Khan, SDPO, found him innocent, as a result of which his name was placed in Column No.2 of the challan -sheet. Likewise, Rafaqat Ali petitioner also advanced his plea of alibi before the abovesaid Investigating Officers. He alleged that at the relevant time of occurrence, he was available in the house of his in‑laws in Samundari. He had also produced witnesses before the police to depose about his innocence. He submits that affidavits (Annexures E/1 to E/7) would be most relevant. No weapon could be recovered from both of them and their names were placed in Column No.2 of the challan- sheet. Learned counsel for the petitioners submit that the petitioners were found innocent during course of three successive investigations, so their case falls within the ambit of further inquiry. Learned counsel appearing on behalf of Mubammad Yaqoob petitioner submitted that he had no motive to commit' crime, imputed to him; that he was available at the spot, but he neither had any fire‑arm nor made use of the same during occurrence, that allegation brought against him is false, and that on his refusal to become a witness for the complainant side, he had been entangled in this case.

6. Learned counsel for the State assisted by learned counsel for the complainant opposes grant of bail to the, petitioners by forcefully arguing that names of the accused are mentioned in the F.I.R.; that they all launched a pre‑concerted attack on the complainant side while armed with lethal weapons for a definite reason, and active roles played by them are in consonance with the medical evidence. Lastly, they argue that opinion of the police is not binding on the Court, which has ample power to disagree with the same and the offences with which the petitioners are charged are punishable with death or imprisonment for life, so they do not deserve to be released on bail.

7. I have attentively heard and soberly considered respective arguments of learned counsel for both the sides and also perused the relevant material.

8. The event giving rise to the charge happened on 12‑4‑2002 at about 12‑30 p.m., in the area of Chak No.54/GB, situate at a distance of four miles approximately from the Police Station. Mahmood Ahmad, S.‑I., on receipt of information about the occurrence, reached Civil Hospital,. Jaranwala, where he reduced into writing complaint at 3‑25 p.m., which was dispatched by him to the Police Station for formal registration of a case F.I.R. stood recorded at 3‑30 p.m. at the police Station. Both the sides are fully acquainted with each other. It is a daytime occurrence. The complainant and witnesses had no doubt with regard to identity of the accused. The manner and mode of perpetration of crime well indicates that it was a pre‑planned and pre‑concerted violent attack on the complainant side. Three real sons of the complainant, namely, Shaukat Ali, Zulfiqar Ali and Liaqat Ali laid their lives due to injuries sustained at the hands of their assailants. Excessive number of injuries on the deceased persons fully corroborates the prosecution version and statements of three other injured witnesses including the complainant. The number of injuries commensurates with the number of assailants. Not only the complainant but all other witnesses have fully supported the prosecution story during course of investigation. Plea of alibi raised by Shaukat Ali and Rafaqat Ali petitioners has to be weighed and assessed in the scales of justice by the Trial Court after recording statements of defence witnesses. Final power to judge guilt or innocence of an accused rests with the trial Court. Father of three deceased persons cannot afford to spare actual killers or his sons. The complainant and witnesses do not appear to have a motive to wrongly implicate them in a case of this nature. Statement of defence witnesses are not sufficient to rebut allegations against the accused. Opinion of police regarding innocence of the accused cannot be considered as legal evidence in a case. This Court has ample power to disagree with the police and refuse bail as held in case. Haji Inayat‑ul‑Haq v. Said Muhammad Khan and others (1988 SCMR 1743). Likewise, the accused whose name is placed in Column No.2 of challan remains as accused for the purpose of trial, until he is got discharged by the police from the Court. Reference may advantageously be made to the case of Riasat Ali v. The State and another (PLD 1993 Lah. 105). Whether opinion of the police should be accepted or not, all the attending facts and circumstances of the case has to be taken into full account. Refers Liaqat Ali v. The State (PLD 1994 SC 172). In this case, three defenceless innocent young sons' of the complainant have been brutally murdered, whereas three others also received fire‑arm injuries at the hands of the accused.

9. After considering totality of facts and circumstances of this case. I am not inclined to allow bail to the petitioners. Both these petitions are accordingly dismissed being devoid of force. H. B.T./S/744/L Bail petitions dismissed.