2007 PLP 1557 (YLR)

HASNAT AHMAD KHAN, J.--The petitioner seeks bail after arrest in case F.I.R. No.187 of 2006 dated 27-6-2006, under sections 302/454/427/324/342/354/ 382/148/ 149/109/ 337-A(ii)/ 337-F(iii)/ 337-F(ii), P.P.C. registered at Police Station Shehar Sultan, District Muzaffargarh.

2. Legal machinery was put into motion at the instance of Muhammad Ashraf who submitted an application to the S.H.O. Police Station Shehar Sultan, for registration of case under abovementioned sections against 67 accused persons including 20 un-identified accused. According to the complainant, unfortunate incident took place on 27-6-2006 at 8-30 p.m. when 67 accused while armed with various weapons including the fire-arm weapons stormed into the drawing room/Baithak of Manzoor Hussain and launched an attack upon the complainant and his companion, who had gathered to mourn the death of one of their relatives. During the occurrence, 21 persons including the ladies received injuries at the hands of the petitioner and his allies. According to the complainant, the petitioner had caused a fire-arm injury hitting the abdomen of Waheed-ur-Rehman deceased. After causing injuries to the deceased and the injured P.Ws., all the accused allegedly barged into the house of Muhammad Arshad and caused injuries to Muhammad Arshad, Nasrullah and Qamar?uz-Zaman with their respective weapons. Gold ornaments, net cash and other articles like T.V. etc. were looted in this process by the accused persons. The motive of the occurrence was stated to be election rivalry.

3. The petitioner moved an application for post-arrest bail before the learned Sessions Judge, Muzaffargarh, which was dismissed on 19-10-2006, compelling the petitioner to move this Court for the grant of post-arrest bail.

4. In support of this petition, learned counsel for the petitioner has contended that during the investigation the petitioner was found innocent and request was made by the police for discharge of he petitioner along with five others. However, the learned Magistrate did not accede to said request and the same was turned down; that the post-mortem report shows that there was blackening around the wounds/injuries received by the deceased; that during the investigation hundreds of people appeared to support the plea of innocence raised by the petitioner; that the plea of alibi was also raised by the petitioner which was duly accepted by the I.O; that according to the police, the fire-arm injury received by the deceased was caused by Mushtaq and not by the petitioner; that the petitioner was removed to the hospital with some delay and death was caused due to excessive bleeding; that during the same occurrence five persons on the side of the petitioner had also received injuries and as such, it is a case of cross version. Lastly while relying upon the observation of this Court in Para 9 of order dated 8-11-2006 passed in Criminal Miscellaneous No.3227-B of 2006, he has contended that the role of causing specific injuries is not believable in the peculiar circumstances of this case. In support of his contensions he has relied upon the following judgments:-- "Muhammad Iqbal and 3 others v. The State" (2004 YLR 20), "Muhammad Akram v. The State" (2005 YLR 683), "Sabir Hussain v. The State" (2005 MLD 1756), "Ghulam Yaseen v. Muhammad Nawaz and 2 others" (1998 PCr.LJ 1634), and "Saifur Rehman v. The State and another" (2006 PCr.LJ 1509).

5. Learned State counsel and the counsel for the complainant have supported the order dated 19-10-2006 passed by the learned Sessions Judge, Muzaffargarh, whereby, the bail was refused to the petitioner. They have further contended that the petitioner is main accused and he is responsible for the death of the deceased. They add that opinion of the police is not binding upon the Courts and lastly they have contended that the case is fixed for 15-1-2007 for framing of charge.

6. Heard. Record perused.

7. It has been straightway noticed that the petitioner is specifically named in the F.I.R. with specific role of causing fire-arm injury to Waheed-ur-Rehman deceased. He is principal accused. It is true that' during the investigation he was found innocent and report for discharge was submitted, but it is equally true that the learned Judicial Magistrate did not accede to the request of the police for discharging the petitioner. It is further observed that the opinion of the police is not binding upon the Courts especially when the same is not based upon the sound material. During the investigation the eye-witnesses including the injured witnesses remained consistent while implicating the petitioner in the crime. Under the law evidence of the eye-witnesses would be preferred against statements of even hundreds of people who do not claim themselves to be eye-witnesses of the occurrence. As far as plea of learned counsel for the petitioner that according to the site-plan prepared during the investigation, the distance between the deceased and the place from where the petitioner caused fire-arm injury, was 15 yards, but according to the medico-legal report the fire landed on the person of the petitioner from a close distance is concerned that relates to the deeper B appreciation of evidence, similarly the contention that the deceased died to the excessive bleeding and negligence of the complainant side and doctors, is concerned that also relates to the deeper appreciation of evidence. As far as, the contention of the learned counsel for the petitioner that numerous people supported the defence plea on Oath of Holy Qur'an is concerned, suffice it to say that procedure of swearing on Holy Qur'an during the c investigation is alien to the criminal proceedings. Reliance is placed upon "PLD 1990 SC 83". Similarly is the case of plea of alibi which would also be requiring deeper appreciation and at this stage commenting upon the said plea is likely to D prejudice the trial. Reliance in this regard is placed upon "PLD 1974 SC 83" and 1990 ALD 639.

8. Learned counsel for the petitioner has unsuccessfully tried to take the advantage of the observation made by this Court while granting bail to some of the co-accused, vide order dated 8-11-2006. The said observations were made in context of the decision of the application of the co-accused who were not responsible for causing fatal fire-arm injury to the deceased. While granting bail to nine of the co-accused, the Court was not inclined to grant bail to Yaqoob, Pervaiz and Zulfiqar co-accused and for the reason on said date, the learned counsel for the petitioner withdrew the bail application to their extent after reading the mind of the Court. The role of said petitioners was certainly of lesser in nature than that of the petitioner.

9. Regarding the case-law submitted by the learned counsel for the petitioner, it is observed that the facts of each case are always different from the other and as such, the bail applications are always decided keeping in view the facts of each case. As such, the judgments cited by the learned counsel for the petitioner are distinguishable.

10. Even otherwise, as submitted by the learned counsel for the complainant, the trial is about to commence.

11. Epitome of all the discussion made above is that the petitioner is not found to I be entitled to post-arrest bail and consequently the same is dismissed.

12. Before parting with the order, I would like to direct learned trial Court to conclude the trial expeditiously. N.H.Q./M-55/L?????????????????????????????????????????????????????????????????????????????????? Bail refused.