2006 P Cr (PLP)

KHAWAJA MUHAMMAD SHARIF, J.

Learned counsel for the petitioners, in support of this bail petition contends that the petitioners have falsely been involved in this case; that co-accused Ismail was allowed bail by Mr. Justice Asif Saeed Khan Khosa in Criminal Miscellaneous No.1580/B of 2006; that petitioner Rafiq is attributed a hatchet injury on the head of Shahid while Naeem petitioner is attributed a Sota injury on the right forearm of Shahid; that according to the statement of the said injured Shahid made under section 161, Cr.P.C. he has not attributed any injury to the petitioners; that the case of the petitioners is one of further inquiry and that the petitioners are entitled to the concession of bail.

2. On the other hand, learned counsel for the State submits that the petitioners are named with specific roles, recovery has been effected from them, they have been found guilty during the course of investigation and that the petitioners are not entitled to the discretionary relief of bail from this Court.

3. I have heard learned counsel for the parties, have given consideration to the submissions made at the bar and have also gone through the record.

4. A bare perusal of the F.I.R. shows that petitioner Rafiq is attributed a hatchet injury on the head of Shahid which did exist in the MLR as injury No.1. Naeem petitioner is attributed a Sota injury on the right forearm of Shahid which is present in his MLR as injury No.4. The recovery of the respective weapons of offence have been effected from the petitioners. They have been found guilty during the course of investigation. Statement of injured Muhammad Ashraf recorded under section 161, Cr.P.C. is available in the police file through which he has fully implicated both the petitioners with the commission of offence. Non-mentioning of specific attribution of injuries to the petitioners in the statement made by Shahid under section 161, Cr.P.C. appears to be a negligence or inefficiency on the part of the Investigating Officer. So far as grant of bail by this Court to co-accused Ismail is concerned, he was not attributed any injury to anybody, so his case is distinguishable from the case of the present petitioners. There is one deceased and two injured persons in this case and it is a heinous offence. The question of grant of bail on the basis of further inquiry was commented upon by the apex Court of the country in a number of cases. In this regard reliance is placed on Sardar Munir Ahmad Dogar v. The State PLD 2004 SC 822, wherein while declining bail after arrest sought on the ground of "further inquiry", at page 828, apex Court of the country in the judicial hierarchy commented as under:-- "(10) It may be noted that now it is a settled principle of law that if an accused succeeds in making out a case of further inquiry, he is entitled for grant of bail because invariably such plea is available in every case. Reference in this behalf may be made to the case of Asmatullah Khan v. Bazi Khan PLD 1988 SC 621 and Nasreen v. Fayyaz Khan PLD 1991 SC

412. Relevant para. from the latter judgment is reproduced hereinbelow:-- "Lastly the question of, prima facie, opinion about the guilt of the accused under subsection (1) of section 497 Cr.P.C. or subsection (2) thereof has not been properly examined in the impugned order. The easy contrivance of "the further inquiry" against positive rulings of this Court explaining the provisions of section 497(2), Cr.P.C. was pressed into service. It has been observed time and again that there would hardly be a case which would not require "further inquiry" therefore, this element, by itself, is no ground for granting bail under subsection (2) of section 497, Cr.P.C. Such orders are, on their very face illegal which do not fulfil the second condition regarding tentative opinion about the prima facie guilt or otherwise of the accused." With reference to above principle, this Court in the case of Shoaib Mehmood Butt (ibid), which has been relied upon by the learned counsel for the petitioner, has held that every hypothetical question, which can be imagined, would not mean that it is a case of further inquiry simply for the reasons that it can be answered by the Court subsequently after evaluation of evidence. Broadly speaking, the condition laid down in clause (2) of section 497, Cr.P.C. is that there are sufficient grounds for further inquiry into his guilt which means that the question should be such which has nexus with the result of the case and may show or tend to show that the accused is not guilty of the offence with which he is charged." In the afore-referred circumstances, this Court is of the prima facie view that the petitioners are connected with the commission of offence which falls within the prohibitory clause of section 497(1), Cr.P.C. and is not entitled to bail. Resultantly, I find no merit in this petition which is hereby dismissed. H.B.T./M-460/L Bail refused.