2004 P Cr (PLP)

Petitioners Muhammad Bashir son of Muhammad Hayat, Munir Ahmad son of Noor Muhammad, Muhammad Akmal son of Fazal Karim, Ijaz son of Muhammad Sharif and Abdul Rehman son of Hakim Ali seek after arrest bail in case F.I.R. No.455 of 2003 dated 4-9-2003 under sections 302/109, 148/149, P.P.C. registered at Police Station Sadar Kharian, Gujrat at the instance of Subedar Abdul Ghafoor for murder of Mian Muhammad Ameer, brother of the complainant and Shabbir Hussain son of Muhammad Amder. The brief facts of the case are that on 4-9-2003 at about 4 p.m. the complainant and the P.Ws. along with Mian Muhammad Ameer and Shabbir Hussain riding motorcycle were coming back to the village Sikandar, when they were -waylaid by accused namely, Nasir Ahmad armed with Mauser Muhammad Idrees armed with pistol .30 bore, Muhammad Bashir armed with rifle, Basharat armed with pistol .30 bore, Munir Ahmad armed with rifle, Muhammad Akmal armed with pistol .30 bore, Ijaz and Abdur Rehman armed with rifles along with unknown persons armed with fire-arms launched attack and inflicted injuries with their respective weapons to Mian Muhammad Ameer and his son Shabbir Hussain who succumbed to the injuries at the spot. I was also alleged that the occurrence took place at the instance of Muhammad Sadiq and Mian Khan. The motive for the occurrence was previous enmity between the parties. The petitioners were arrested and declined after arrest bail by the learned Additional Sessions Judge, Kharian vide order, dated 11-3-2004. Hence this petition. Learned counsel for the petitioners contends-- (a) that no recovery of weapon of offence has been effected from the petitioners and also no empty was taken into possession from the spot; (b) that during the investigation firstly by the Sub-Inspector thereafter by D.S.P. the petitioners were found innocent and discharge report was prepared but the same was not approved by the learned Judicial Magistrate; (c) that the petitioners are placed in column II of report submitted under section 173, Cr.P.C. Thereafter, the complainant filed a private complaint in which the petitioners have been summoned to face the trial; (d) that there is clear contradiction in the ocular account and the post-mortem report, as the injuries attributed to Muhammad Akmal and Ijaz petitioners are exit wounds according to post mortem report; (e) and that the trial has commenced in the private complaint, therefore, the petitioners are entitled for concession of bail in challan case, as there is no likelihood of early conclusion of the trial in challan case. Learned counsel for the petitioners in support of his contentions has placed reliance on Salabat v. State 1975 PCr.LJ 451; Muhammad Ilyas v. State 1992 SCMR 1857; Mukhtar v. Mohsin Ali Shah and another 1987 SCMR 1721; Rauf and another v. State and another 1975 PCr.LJ 594; Ghulam Rasul v. State and 4 others 1982 SCMR 440, to argue that if the accused are placed in column II of report under section 173, Cr.P.C. it means that they are not accused and were allowed by the High Court and the Supreme Court refused to cancel the bail. Similarly, cited Muhammad Saleem v. State 1989 Criminal 517; Ibrahim v. State 1969 PCr.LJ 111; Muhammad Hussain v. State PLJ 1996 SC 795; Abdul Manan alias Billa v. State PLD 1999 Lah. 74; Muhammad Hayat v. State 1974 PCr.LJ 450; Syed Abdul Baqi Shah v. State 1997 SCMR 32; Haji Maa Din and another v. State and another 1998 SCMR 1528; Mohsin v. State 1977 PCr.LJ 159; Allah Bakhsh and another v. State 1971 PCr.LJ 1051; Misal Din v. State PLD 1996 Lah. 192; Shoaib Mehmood Butt v. Iftikhar-ul-Haq and 3 others 1996 SCMR 1845, to argue that the accused were declared innocent in successive investigations and were allowed bail and that in case Falak Sher and another v. State 1979 SCMR 103 no recovery was effected from the accused and they were allowed bail and in Ch. Abdul Malik v. State PLD 1968 SC 349 the accused were allowed bail holding that bail cannot be withheld as a punishment. Learned counsel for the petitioners also relied upon Allah Dad and others v. State 1983 PCr.LJ 2394(2); Amir v. State PLD 1972 SC 277; Mahmood Ahmad and another v. State 1988 MLD 2713; Mazhar Hussain Shah v. State 1986 PCr.LJ 2359 and Malkoo v. State 2003 PCr.LJ 1760 in support of the petition. The petition has been opposed by learned counsel for the complainant and for the State. Learned counsel for the complainant has argued that the trial has already commenced and by placing reliance on Nadeem Butt v. State 2001 PCr.LJ 1817 has argued that if the accused has been attributed fire-arm injury to the deceased and the eye-witnesses fully support prosecution version, then the bail is not to be granted. He has further placed reliance on Muhammad Yousaf v. State 2001 PSC Criminal 29 to argue that at bail stage scrutinizing the detail may prejudice the case of one or the other party, Naqi Hussain Shah v. State NLR 1992 Criminal 166, wherein it was held that even if the accused is declared innocent by the police and challan has been submitted he is not entitled for bail; Muhammad Hanif and others v. State 2001 PCr.LJ 1470 that if the accused were summoned in a private complaint then it cannot be stated that the case is of further inquiry. Learned counsel for the complainant has also placed reliance on Muhammad Hassan and 2 others v. State 2000 C.Cr.C. 524; Wazir Khan and another v. State 1987 PCr.LJ 532; Sajjad Hussain alias Basarar v. Faqir Muhammad and another 1987 PCr.LJ 1898; Khalid Mehmood and others v. State 2003 CrLJ 481 and Mst. Qudrat Bibi v. Muhammad Iqbal and another 2003 SCMR 68 in support of his contentions. I have heard the learned counsel for the parties and examines the record. The occurrence took place at 4 p.m. and the F.I.R. was lodged at 7-30 p.m. at the police station at a distance of six miles from the place of occurrence. The petitioners were nominated with specific role. It was a daylight occurrence. The parties knew each other prior to the occurrence and there is no question of mistaken identity; and there is' also no reason for false implication of the petitioners by letting off the real culprits as substitution is a rare phenomena in murder cases and mere non-recovery of weapon of offence is no ground to grant bail. Learned Additional Sessions Judge as per para. 7 has deeply examined the police file and rightly concluded that there was no sufficient material available with the Investigating Officer to declare the petitioners innocent. Recovery of weapon of offence is only corroborative piece of evidence and the conviction can be recorded even on the basis of statements of the eye-witnesses as there is no previous deep-tooted enmity for their false involvement. The arguments of learned counsel for the petitioners that there is clear contradiction in the medical evidence and the ocular account require deeper appreciation of evidence which is not possible at this stage. After framing the charge the trial has already, been commenced and it is settled law that any observation made by this Court may adversely affect the case of either of the parties before the trial Court, therefore, I do not find an v force in the instant petition. The case-law referred to by learned counsel for the petitioners is distinguishable and not applicable to the facts and circumstance, of the present case, so the petition stands dismissed having no force. The above observation is tentative only for the purpose of bail and shall, not effect upon the merits of the case. H.B.T./M-641/L Bail refused.