Kausar Javaid vs State etc.

Criminal Misc.No.7397-B/2013

Kausar Javed The State etc.

23.09.2013 Rai Bashir Ahmad, Advocate for the petitioner. Ch. Muhammad Jahangir, DPG and Muhammad Sher, SI along with record for the State.

Syed Ghulam Abbas Naqvi, Advocate for the complainant.

Through the instant petition, Kausar Javaid, petitioner seeks post-arrest bail in case F.I.R. No.415 dated 13.06.2012 registered under Sections 302/324/148/149/109 P.P.C. at Police Station Hajipura, District Sialkot.

2.Briefly stated the prosecution version as set forth in the FIR is that on 13.06.2012 at about 10.00 p.m, the petitioner along with their co-accused persons, who were armed with their respective weapons raised “Lalkara”, made indiscriminate firing upon the complainant party and committed murder of four persons namely Babar, Sajjad Shahbaz, Muhammad Amjad and Ijaz Ahmad.

3.The learned counsel for the petitioner has contended that the petitioner has been involved in this case with male fide intention; that during investigation no incriminating material is available on the record, which makes the case of the petitioner for further inquiry; that the petitioner was present in his Office at the time of occurrence and involved the petitioner for abetment under section 109 PPC; that the petitioner is an Advocate by profession and false proceedings under section 87, 88 Cr.P.C has been initiated against him; that no recovery has been effected from the petitioner and if any that is fake and fictitious and that the petitioner is behind the bars since 25.07.2012 and his person is no more required for further investigation.

4.The learned DPG and the learned counsel for the complainant have vehemently opposed the petition. It is contended that the petitioner is nominated in the FIR with specific role; that it was a promptly lodged FIR; that PWs in their statements recorded under section 161 Cr.P.C have fully implicated the petitioner in the occurrence; that sufficient incriminating material is available on the record to connect the petitioner with commission of alleged offence, therefore, he is not entitled for bail.

5.I have heard the arguments of the learned counsel for the parties and have gone through the available record.

6.First post arrest bail petition of the petitioner bearing Crl. Misc.No.16534-B of 2012 was withdrawn on 21.12.2012 with the option to re-file the same at the appropriate stage whereas the second Crl. Misc.5102-B of 2013 on the same subject was also withdrawn on 02.05.2013. However, no fresh ground has accrued in favour of the petitioner. During investigation, offence under section 109 PPC was added against the present petitioner vide Zimni No.28 dated 06.08.2012. The grounds agitated in this petition was available at the time of filing of first Crl. Misc.No.16534-B of 2012, which was withdrawn by the petitioner with the option to refile the same at appropriate stage. The petitioner was declared guilty by the police during investigation. Although ipsi dixit of the police is not binding upon the Courts, however, if the same is supported by strong evidence, then the Courts have to look into at the time of deciding the bail application. The mobile data collected by the police officials reflects that the petitioner remained in contact with his co-accused, namely, Gul Nawaz alias Jabar from 09:53 p.m to 10.07 p.m on the day of occurrence, i.e. 13.6.2012 before and after the occurrence whereas the occurrence took place at 10.00 p.m on 13.06.2012. During the investigation, it has also came into light that the present petitioner has civil and other disputes with the deceased persons, as strong reason of abetment is available on record against the present petitioner. The contention of petitioner”s counsel that during the investigation, version of the complainant did not prove as Investigating Officer declared four accused persons, namely, Haider, Khawar, Wajid and Yousaf as innocent and reached to the conclusion that the petitioner is accused to the extent of offence

under section 109 PPC and his presence at the place of occurrence was not proved and case of the petitioner needs further probe and inquiry, does not have any weight as the complainant being dissatisfied from the investigation conducted by the Investigating Officer, filed private complaint against all the accused persons in which they were summoned, charge was framed on 27.05.2013 and all the PWs are supporting the complaint case. Keeping in view the facts and circumstances of the case, the case against the petitioner falls within prohibitory clause of section 497 Cr.P.C as there are strong reasons to believe that the petitioner was actively involved in participation of the commission of the alleged crime in view of the statement of the complainant as well as the PWs. The plea of alibi came up for consideration before August Supreme Court of Pakistan in case of Waqar-ul-Haq v. The State (1985 SCMR 974) wherein it was held that as far the plea of alibi is concerned, it cannot be judged at bail stage. While granting bail, the court has to make tentative assessment on the basis of material available on record. Deeper appreciation is not warranted at the time of grant of bail. Since, the complaint case is in progress since 27.5.2013 and the PWs are appearing for evidence but record shows that the learned defence counsel are not appearing before the learned trial court due to one reason or the other whereas the prosecution witnesses were bound down by the learned trial court on each and every date of hearing and trial could not be concluded due to the conduct of the accused. As the petitioner is assigned specific role of abetment, therefore, he does not deserve the concession of bail at this stage.

7.Resultantly this petition being without force is dismissed.

(Aalia Neelum) Judge Approved for reporting.

Judge *Tariq