P L D 2009 Supreme Court 440 (PLP)

IFTIKHAR MUHAMMAD CHAUDHRY, C.J.

This petition has been filed against the order dated 19-9-2008, whereby learned Single judge of the Lahore High Court, Lahore, granted bail to the respondent/accused for following reasons:-- "(i) During investigation about 200 persons appeared before the Investigating Officer and supported the version of the accused that in the first fight present petitioner Nadeem Baig sustained serious head injuries. While he was being taken to hospital by his brother and father some one informed his other brother Faisal Baig that the present petitioner had been murdered by the complainant, his brother and his father, on which he rushed home, took out a rifle, reached the house of the complainant and killed the three deceased victims. Accordingly, except for Faisal Baig the investigating Officer found all other co-accused including the present petitioner to be innocent. The Investigating Officer present in the Court supports his findings, which he claims were subsequently verified by the Senior Police Officers. The fact alone makes the case of the present petitioner to be that of further inquiry. (ii) Neither any recovery has been el reeled from the petitioner as accused nor he is needed by police for any investigation purpose. And, (iii) The challan in the case has though been submitted in Court, yet even charge has not so far been framed. Therefore, the conclusion of the trial cannot he seen with reasonable certainty."

2. The facts in nutshell are that statedly vide an F.I.R No.100/2007 P.S. Karianwala, District Gujrat, Zubair s/o Muhammad Rafiq on 7-5-2007 reported that on the day of incident a scuffle took place between the parties in which the father of the complainant Muhammad Rafiq and his brother Zahid Rafiq, as well as Nadeem Baig, respondent, sustained injuries. it may be noted that the nature of the injuries particularly with reference to Nadeem Baig were not described, however, the matter was statedly patched up and the accused party in order to take revenge of their insult alleged to have attacked upon them when the complainant along with his father Muhammad Rafiq, mother Surriya Akhtar, brother Zahid Rafiq, Sami-ul-Hassan s/o Muhammad Younis, Khalida Bibi w/o Muhammad Ashraf were present in their house. Accused namely Zahid Baig s/o Walayat Baig, Nadeem Baig and Faisal Baig sons of Hanif Baig, Shafique Baig s/o Sharif Baig, Sharif Baig s/o Akbar Baig duly armed with rifles came in the street in front of their house and Sharif Baig raised Lalkara. On hearing their noises Muhammad Rafiq, Surriya Akhtar and Zahid Rafiq went out in the street and the complainant also followed them. Sharif Baig raised a Lalkara and stated that revenge will be taken of their insult. On this Faisal Baig straight fired with his rifle which hit Muhammad Rafiq on his chest due to which he fell down afterwards a second fire was shot which hit hint on his right flank. Nadeem Baig, respondent, straight fired at Zahid Rafiq which hit on his chest and then Zahid Baig fired at him which hit him on his neck due to which he fell down. Sharif Baig also fired at Zahid Rafiq which hit on his right side. Shafique Baig straightly fired with his rifle at Surriya Akhtar which hit on her right side due to which she fell down. The father and brother of the coutpfainant died at the spot whereas, his mother was taken to hospital it a serious condition but she succumbed to injuries in the hospital. Accordingly, a case was registered in respect of murder of three persons namely Muhammad Rafiq, Surriya Akhtar and Zahid Rafiq.

3. During the investigation, six empties of Kalashanikov were recovered from the place of incident. As far as Nadeem Baig is concerned, statedly he was not present on the spot as on account of sustaining injuries he was taken to a hospital and during this time information regarding the incident was received by him through his relative on cell phone, therefore, instead of going to a local hospital they ran away from the place of occurrence due to fear of being killed. In the Court, it was informed by the learned counsel for the respondent that the respondent came to Islamabad for the purpose of getting medical treatment. Be that as it ay, after remaining absconder for 66 days he surrendered before the Sessions Judge claiming grant of bail and obtained an ad-interim pre-arrest bail but at the time of confirmation of his bail or otherwise, he absconded and, therefore, approached the High Court for hail before arrest but could not get the relief and his request was declined on 27-7-2007 vide Crl. Miscellaneous. No. 5247-B/2007 and again he approached the Sessions Judge for pre-arrest hail which was allowed on 28-7-2007 and was nut confirmed but again he did not appear, therefore, the bail order was recalled and in the meanwhile, he remained in custody. After his arrest, the petitioner again moved an application before the Additional Sessions fudge for grant of hail which was declined by him on 13-3-2008. Accordingly, he approached the learned High Court for hail which has been allowed by means of impugned order, the relevant part therefrom has already been reproduced herein above.

4. The learned counsel for the complainant stated that Mst. Khalida Bibi, Zubair and Sami-ul-Hassan, being the eyewitnesses, have fully implicated the respondent in the commission of the of fence but he has been granted bail for the reasons which are not recognized under the well established principles and the law governing such matters. 4-A. The learned counsel for the respondent stated that the respondent in the incident preceding the main occurrence sustained injuries as it reflects from the F.I.R itself and in order to further ascertain about the nature of injuries, the Sessions Judge got opinion of the Doctors and some exercise in such behalf was also undertaken by the High Court, resultantly on the basis of opinion of Doctors that he had sustained injuries on his skull about one year back, therefore, according to the learned counsel, it was rightly concluded that he was not present at place of incident. Besides, the learned counsel added that about 200 persons appeared before the Investigating Officer by lending support to the plea of the respondent that he was not involved in the commission of the fateful incident.

5. Learned Deputy Prosecutor General opposed the impugned order and contended that no one out of 200 persons appear a before the Investigating Officer to say that they were present and had witnessed the main incident. He was also of the opinion that the High Court ought to have disposed of the bail plea of the respondent on the basis of material available on the record.

6. We have considered the contentions of the learned counsel for the parties and have gone through the impugned order carefully in the light of the record of the case.

7. Firstly, as it has been observed herein above, the learned high Court found itself to have been satisfied that during investigation about 200 persons appeared before the Investigating Officer and supported the version of the respondent/accused and that in the first fight preceding the main incident the respondent/ accused sustained serious head injuries as while he was being taken to the hospital the second incident took place and fires were made only by Faisal Baig. Secondly, in this view of the matter, it is to be noted that as per record of the case no one had appeared before the Investigating Officer to testify about the alibi plea of respondent i.e., that he was not present at the place of incident as he had suffered injuries in the first incident. Admittedly, no evidence was produced by the respondent in respect of injuries alleged to have been sustained by him during the course of investigation. It is noteworthy that the first light preceding the main incident had taken place at 4:00 p.m. but no explanation was provided as to why the respondent was not immediately shifted to the hospital whereas; the second incident took place at 5 O'clock. Thirdly, no evidence, during the course of investigation, from the hospital was produced. We have noted that Sessions Judge as well as the High Court had obtained the medical reports with regard to the injuries alleged to have been suffered by the respondent. Essentially in view of the overall facts of the case and in the first fight meaning thereby that the people to support the plea of the respondent particularly in view of the assertion of the Investigating Officer having concluded that a number of people alleged to have stated with regard to the injuries of the petitioner and that he was being taken to hospital when the second (main) incident took place but strange enough that hone at the relevant time came forward to depose so before the Investigating Officer. Thus, it has never been the practice of the Courts and under section 497(2), Cr.P.C. to make probe into a defence version in order to advance a plea of bail, rather it has to tentatively assess the material produced before it and to see if reasonable grounds exist to believe, of prima facie, involvement of accused in the commission of the offence. The second admitted aspect of the case is that if the plea on the basis of which the respondent has been released on bail is accepted, would impugn with the version of the eyewitness namely Khalida Bibi, Zubair and Sami-ul-Hassan which have been discarded at this initial stage of the case by observing contra to the version of ocular witnesses; which course was at all not permissible and later on no such evidence is furnished, then it would not be free from doubt and in accord with the above quoted provisions of law, evidence of eyewitnesses has been discarded even in view of the medical opinion by the learned Sessions Judge, as well as by the High Court. This is also to be noted that during the course of investigation the police is not required to examine hundreds of people in order to inquire as to whether the accused is involved in the offence or not. They are required to consider the material available on the record and not to disregard the eyewitnesses in support, to say that he is not involved in the commission of the offence, and thus would not only be entitled to the grant of bail but at the same time to earn acquittal. In the peculiar circumstances of the case the practice adopted by the learned trial Court as well as by the High Court is not appreciated.

8. As regards the second ground that found favour with the learned High Court related to the non-recovery of the weapon of offence, it is also not available to the accused for the reason that he remained absconder for a considerable period of time and even did not surrender despite cancellation of his hail by the High Court as well as by the Sessions Judge. We have also noted that the reason prevailed upon the High Court with regard to non-framing of charge after submission of challan entitled him to the concession of bail. On submission of challan, the proceedings in the case after training the charge commences and in the meanwhile on the ground of non submission of challan in the case which attract prohibitory clause of section 497, Cr.P.C. would not entitle an accused to the grant of bail in view of well recognized principles of criminal jurisprudence.

9. Thus, for the foregoing reasons we are of the opinion that in the given circumstances of the case, there is evidence of three eyewitnesses namely Mst. Khalida Bibi, Zubair and Sami-ul-Hassan, who have furnished ocular account of incident against the respondent involving him prima facie in the commission of the offence. The learned High Court has not considered their evidence and had granted hail to the respondent for the reasons discussed hereinabove. 'Therefore, we are of the considered opinion that the reasons on which bail has been extended to the accused/respondent are not sustainable in the eye of law.

10. For what has been stated hereinabove, this petition is converted into appeal and allowed. The impugned order dated 19 9-2008 passed by the High Court is set aside. Nadeem Baig, respondent, present in the Court is ordered to he taken into custody and he dealt with in accordance with law. M.B.A/K-8/S Appeal allowed.