2013 PLP 49 (MLD)

RAUF AHMAD SHAIKH, J.

As both these bail petitions arise out of case F.I.R. No.503 of 2007 dated 29-7-2007 Police Station Mumtazabad, District Multan, under sections 302/324//458/148/149, P.P.C. so are being disposed of through this single order.

2. Briefly stated the prosecution version as set-forth in the F.I.R. recorded on the statement of Dildar Rasheed complainant is that at about 1-00 a.m. on 27-7-2007, the members of his family were not sleeping and the lights of the house were on as guests had come, when suddenly five persons made trespass by scaling over the wall. Gulzar and Mst. Surraya, brother and brother's wife of the complainant raised alarm so the inmates of the house rushed towards the courtyard. Two persons were giving repeated blows on the face and right arm of Gulzar Ahmad, who tried to catch hold of one person, on which Allah Rakha made fire, which landed below the left armpit of Gulzar Ahmad and crossed his body. Javed Ahmad proceeded forward and the accused, who was tall in height made fire, which landed below left armpit of Javed, who also fell down. The 3rd accused made two fires, which landed on right thigh of the complainant. Ghulam Mustafa and Abdullah Jehanzeb were also injured. On report of firing and alarm, the residents of the area arrived there and the accused persons fled away by scaling over the wall. Gulzar died at the spot while Javed died on way to Hospital. Allah Rakha armed with Rifle and four other persons whose features were given had caused Qatl-e-Amd of his two brothers and injured him and his two nephews.

3. Learned counsel for Allah Rakha petitioner has contended that he is a milkman, who got injury due to stray bullet and was apprehended due to suspicion; that he is behind the bars w.e.f. 29-7-2007 and that the trial has yet not reached its logical end so he is entitled to the concession of bail under clause (b) of fifth Proviso of section 497(1), Cr.P.C. as the delay in trial has not been caused by him. In support of the contention raised, reliance is placed on Allahdino and another v. The State (1999 PCr.LJ 1704) (Karachi), Ilyas and 2 others v. The State (1999 PCr.LJ 1879) (Lahore), Muhammad Siddique v. State 1999 PCr.LJ 966), Asif v. The State (2006 PCr.LJ 1548) (Lahore), Masood Ahmad and 3 others v. The State (2006 PCr.LJ 1603) (Shariat Court (AJ&K)) and Imtiaz Ahmed v. The State (PLD 2009 Lahore 14).

4. Learned counsel for Shabbir Ahmad petitioner has contended that he has been roped in the false case due to his relationship with Allah Rakha; that he was allegedly armed with 'Sota' and had not caused any injury to the deceased persons and that he is behind the bars w.e.f. 8-9-2007 and as such is entitled to bail on statutory ground.

5. Learned counsel for the complainant and learned D.P.G. have vehemently opposed the petition. It is contended that Allah Rakha accused/petitioner sustained injury at the hands of his co-accused and was apprehended at the spot along with Rifle; that 'Sota' has been recovered from the possession of Shabbir Ahmad petitioner; that during this occurrence, two persons lost their lives and three were injured so the petitioners are desperate offenders; that the petitioner Allah Rakha is involved in 25 cases of this nature, whereas Shabbir Ahmad petitioner is involved in eight cases so both are hardened criminals; that delay has not been caused by the prosecution and, in fact, it took place due to non-appearance of the learned defence counsel and non-production of the accused from the Jail; that nine witnesses have already been examined and the trial is likely to be concluded in near future and that earlier bail application moved by the petitioner Allah Rakha was withdrawn after lengthy arguments advanced by his learned counsel.

6. Allah Rakha petitioner armed with Rifle and in an injured condition was apprehended at the spot. The contention that he was merely a passerby cannot be accepted at this stage. Shabbir Ahmad petitioner was duly identified by P.Ws. Ghulam Mustafa, Abdullah Jehanzeb and the complainant in the identification parade held on 23-8-2007 under the supervision of the Magistrate in the Jail. The injured P.Ws. have fully supported the prosecution version and medical evidence lends full corroboration to the ocular account. During this occurrence, two innocent persons lost their lives and three got multiple injuries. The petitioner Allah Rakha is involved in 25 cases of heinous offences, whereas Shabbir Ahmad petitioner is involved in eight cases of the same nature. They are desperate and hardened criminals within the meanings of the last Proviso of section 497(1), Cr.P.C. as amended through Act No.VIII of 2011. Moreover the report of the learned trial court reveals that the trial could not be concluded mainly due to non-availability of their counsel and their non-production from the Jail. Neither they are entitled to bail on merits nor on statutory ground.

7. For the reasons supra, both the petitions are accordingly dismissed. MWA/A-3/L Petitions dismissed.