Muhammad Asif vs The State etc.

Crl. Misc.No. 10847-B of 2013.

Muhammad Asif The State etc.

02.10.2013 Mr. Arshad Nazir Mirza, Advocate for the petitioner. Ch. Muhammad Jahangir, DPG and Atta Muhammad, ASI along with record for the State.

Hafiz Khalil Ahmad, Advocate for the complainant.

The petitioner seeks post arrest bail in case FIR.198/2012 dated 25.06.2012 under section 302/34 PPC Police Station Garh, District Faisalabad.

2.Briefly stated the prosecution version as set forth in the FIR is that on 24.06.2012, the complainant along with his daughter namely Mst. Iram Bibi went to the house of his brother due to demise. At about 2.00 a.m, the petitioner along with his co-accused Allah Ditta, while armed with pistol 30-bore came there and raised “Lalkara” to teach a lesson for not giving the hand of Mst. Iram Bibi, upon which the petitioner Muhammad Asif made a straight fire shot, which hit on front of the right side of chest of Mst. Iram Bibi, who succumbed to the injury at the spot. Hence, this case.

3.Learned counsel for the petitioner has contended that during two successive investigation the petitioner was declared innocent and he has falsely been involved in this case by the complainant against the actual facts and circumstances with mala fide intention; that at the time of occurrence, the petitioner participated in the funeral ceremony as he also gave shoulder to the cot of dead body and the persons, who attended the funeral ceremony duly corroborated the version of the petitioner during investigation; that the name of the petitioner has been placed in column No.2 of the report under section

173 Cr.P.C but the complainant had not filed any private complaint, which shows that he is satisfied with the investigation; that actual the murder of Mst. Iram Bibi was committed by Allah Ditta, who is maternal uncle of the deceased but the complainant involved him in the case just to save the skin of his brother-in-law; that the petitioner is behind the bars since his arrest and his person is no more required for further investigation and that the petitioner is previously non convict and non record holder so he is entitled to the concession of bail. In support of the contentions raised reliance is placed on Farman Ahmed v. Muhammad Inayat and others

(2007 SCMR 1825)

4.The learned DPG and the learned counsel for the complainant have vehemently opposed the petition. It is contended that the petitioner is specifically nominated in the FIR with the allegation that he made a straight fire shot, which landed on the vital part of the body. It is also contended that no doubt the petitioner was found innocent during two successive investigations but the ipsi dixit of the police is not binding upon the Courts; that sufficient incriminating material is available on the record to connect the petitioner with commission of the offence and the offence falls within the prohibitory clause of section 497, therefore, he is not entitled to the concession of bail. In support of the contentions raised reliance is placed on Mudassar Altaf and another v. The State (2010 SCMR 1861), Muhammad Abbasi v. The State and another (2011 SCMR 1606), Shaman and another V. The State (2009 P.Cr.L.J 1327) and Mst. Khalida Bibi v. Nadeem Baig (PLD 2009 SC

5.Arguments heard and record perused.

6.The factum of deliberation is proved from the contents of the FIR. Admittedly, occurrence took place at 9.00 p.m at night and the complainant reported the matter to police on way of Police Station at 11:50 p.m

and FIR was lodged at 12:15 night, which shows that the complainant took three hours for consultation with others for nominating the accused person. The contention of the learned counsel for the petitioner that deliberation and consultation was made by the complainant before lodging the FIR regarding nominating the accused person, cannot be ruled out because all the people including men and women, who were participant in the funeral ceremony took specific stance that Muhammad Asif, petitioner being maternal uncle of late was present in burial ceremony and he also gave a shoulder to the cot of dead body of his niece, when murder of Mst. Iram Bibi took place. During investigation, this fact has also come to the picture that deceased Mst. Iram Bibi married to one Muhammad Arshad without consent of his family member and Allah Ditta is maternal uncle of deceased, who committed “Qatl-i-Amd” of Mst Iram Bibi for the family honour. In two successive investigations, the present petitioner was declared innocent and supplementary challan under section 173 Cr.P.C has been submitted before the learned trial court by placing the name of the present petitioner in column No.2. Sufficient weight to be attached to result of the Investigation Officer, particularly when name of an accused was placed in column No.2 of the report under section 173 Cr.P.C as held in case of Ghulam Rasul v. The State and four others (1982 SCMR 440). The Investigating Officers also recorded statements of the relatives of the complainant, which show that before lodging the FIR, the complainant Maqbool Ahmad consulted with Haji Feroze and on asking of Haji Feroze the complainant informed him that he consulted with Atta Muhammad and after consultation with Atta Muhammad, he is going to lodge the criminal case against Allah Ditta and Muhammad Asif and the said fact is incorporated in the case Diary No.45 dated 23.04.2013. Moreover, the investigation was conducted by two Senior Police

Officers and in consequence of that he was declared innocent in two successive investigations, which were conducted after thorough probe and inquiry. These opinions though not binding upon the Courts but it put on inquiry as to the veracity of prosecution case as held in case of Rehmat Ullah @ Rehman v. the state and another (1970 SCMR 299). The complainant has not filed any private complaint, which reflects that he is satisfied with the investigation conducted by two Senior Police Officers. So far as no private “Mashir” was associated at the time f recovery of pistol from the accused/petitioner. Both the witnesses of recovery memo are witnesses of FIR and private “Mashirs” from the locality were not arranged and same is sheer violation of section 103 Cr.P.C as held in case reported as State through Advocate General Sindh v. Bashir and others (PLD 1997 SC 408) and during successive investigations recovery of crime weapon was also disbelieved. The case law cited bar by the learned counsel for the complainant are not applicable on the facts and circumstances of the present case.

7.For what has been discussed above, the petition is accepted and the petitioner is admitted to post arrest bail subject to his furnishing bail bonds in the sum of Rs.5,00,000/- with two sureties each in the like amount to the satisfaction of the learned trial court.

(Aalia Neelum) Judge Approved for reporting

Judge

*Tariq