Muhammad Hanif vs State etc.

Muhammad Hanif The State & another

22.10.2013 Mr. Rashid Saeed, Advocate for the petitioner. Ch. Muhammad Jahangir, Deputy Prosecutor General and Asad Ullah, SI along with record for the State.

Through the instant petition filed in terms of Section 497, Cr.P.C. Muhammad Hanif/petitioner has sought for his post-arrest bail in case FIR No.269, dated 05.05.2013, offence under Sections 302/324/109/34 PPC, registered at Police Station Sharaqpur Sharif, District Sheikhupura.

2.Prosecution story in brief, as per contents of the crime report, is that on the night between 4 and 5 May 2013, when the complainant alongwith his family members and Bashir Ahmed (brother in law saala of the complainant) was present in his house, Mian Khan, Muhammad Yaseen, Rang Elahi, Pappu armed with firearms entered into the house of the complainant and started making firing. One of the fire shots made by the accused landed at the head of Mst. Bashiran Bibi, who fell down and succumbed to the injuries at the spot and subsequently Muhammad Yaseen accused made another fire shot, which landed on the thigh of Muhammad Waris son of the complainant. It is pertinent to mention here that the present petitioner was complainant of the case but during

the course of investigation, he was arrayed as one of the accused.

3.Learned counsel for the petitioner while addressing the court submits that the petitioner is innocent and has falsely been involved in the instant case against the actual facts and circumstances due to suspicion. Adds that actually the petitioner lodged the instant case, however, subsequently the Investigating Officer while joining hands with the accused involved the petitioner and even accusations levelled against the petitioner do not commensurate with the prosecution stance contained in the crime report. Adds that during the course of investigation the petitioner has been assigned the role of raising lalkara and no overt act qua making any firing was assigned to him. It is vehemently argued on behalf of the petitioner that the medical evidence does not coincide with the occular account and even there was no motive with the petitioner to have committed the murder of his own wife when spouses were living happily. In absence of any direct incriminating material to saddle him with the liability, learned counsel for the petitioner urges, prosecution case against him squarely falls within the ambit of further inquiry calling for further probe within the ambit of Section 497(2), Cr.P.C, therefore, he is entitled to the concession of post-arrest bail.

4.Contrarily, learned Deputy Prosecutor General vehemently opposed the contentions raised by

learned counsel for the petitioner. Learned Deputy Prosecutor General submits that as a matter of fact it was the petitioner, who instigated his son to commit the occurrence and thereafter while concocting a fake/frivolous story lodged the case against innocent persons. Adds that during the course of investigation the petitioner was found guilty as such his name was placed in column No.3 of the report prepared under Section 173, Cr.P.C. Learned Law Officer finally submits that the case being of extra-ordinary circumstances coupled with the fact that prosecution evidence is in progress, at this stage, the petitioner is not entitled to the concession of post-arrest bail.

5.I have heard the arguments advanced by learned counsel for the petitioner, as well as, learned Deputy Prosecutor General and gone through the record available on file.

6.It is established principle of law that each criminal case has its own peculiar facts and circumstances. In the instant case in ordinary circumstances non-mentioning the name of the petitioner in crime report coupled with the names of the PWs would have been of much significance but this Court has to scrutinize the material available on record to arrive at just conclusion of the lis in hand. It is an admitted fact that the petitioner is head of the family and primarily on his statement the case was registered, however, during the course of investigation, it came into limelight that the

petitioner had contracted two marriages and on his instigation/by raising commanding lalkara, his son committed the murder of his step-mother, who is still absconder and the case was got lodged by him against innocent persons. The investigation carried out by the Investigating Officer against the petitioner; wherein accusations contained in the statement of Bashir Ahmed (witness of the crime report) recorded under Section 161, Cr.P.C on 16.05.2008 were fully accredited while placing his name in column No.3 further lend support to the prosecution case. All these facts when put side by side prima facie persuade this Court to believe that there is sufficient material available on record to connect the petitioner with the commission of such a heinous offence, which needless to mention entails capital punishment. It is established principle of law that only tentative assessment of facts is required while disposing of the ancillary matters.

7.As far as commencement of trial is concerned, it is established practice that ordinarily superior courts avoid to indulge in the ancillary matters like bail, etc to render any finding which could prejudice the case of either party during trial. Respectful reliance in this regard is placed on the ratio decidendi of August Supreme Court of Pakistan in the cases of Muhammad Sadik and others Vs. The State (1980 SCMR 203), TAHIR HASSAN HASHMI vs. THE STATE (1990 SCMR 326), Gul Akbar Vs. The State (2007 SCMR 1798) and Muhammad

Hanif Vs. Shafqat Nazir and others (2007 SCMR

8.For the foregoing reasons, this Court has been persuaded to hold that prima facie reasonable grounds do exist regarding the culpability of the petitioner to saddle him with the liability coupled with the fact that the prosecution evidence is in progress and as such the petitioner is not entitled to the concession of bail in such circumstances. Resultantly the instant petition is devoid of legal justification, which is accordingly dismissed.

(AALIA NEELUM)

JUDGE

Approved for reporting.

Judge

Tariq