Hadayat Ali etc. vs The State etc.

Criminal Misc.No.17048-B of 2013

Hadayat Ali etc The State etc.

10.01.2014 Mr. Munir Ahmad Bhatti, Advocate for the petitioners and petitioners in person.

Mr. Ishfaq Ahmad Kharal, AAG and Amanat Virk SI along with record for the State.

Pir S.A Rashid, Advocate for the complainant.

The petitioners seek pre-arrest bail in case FIR No.1149/2012 dated 10.11.2012 under Sections 302/324/34 PPC Police Station South Cantt, District Lahore.

2.Briefly stated the prosecution version as set forth in the FIR is that the complainant is resident of Nishat Colony, Lahore Cantt and run a shop of chicken meat. On 10.11.2012 at about 04:30 p.m, he was present at his shop and four persons, while riding on two motorcycles came at the shop of his brother, namely, Amjad Ali, which is adjacent to his shop. The petitioners along with his co- accused persons entered into the shop of his brother by brandishing the weapons, started beating to him and on raising noise, the complainant came out of his shop and identified four persons namely Waqar, Raja Nadeem Rafique and the present petitioners. In the meanwhile, the complainant ahead for help of his brother but Hadayat Ali, petitioner No.1 pointed out the pistol and warned the complainant that if he tried to rescue his brother, he would be killed. Later on, Raja Nadeem Rafique made a straight fire of his pistol, which hit on the head of his brother, Raja Waqar made fire of his pistol, which landed on the back side of his brother and thereafter Muhammad Rafique, petitioner No.2 made a fire, which hit at the shoulder of his brother. The witnesses namely Arshad @ Moga and Muhammad Shahzad saw the occurrence. Malik Hadayat, petitioner No.1 also made a fire shot upon the complainant but he luckily saved. Thereafter, the petitioners along with co-accused persons fled away from the place of occurrence on their motorcycles and

then the complainant came out of his shop and saw that the accused persons made indiscriminating firing upon Barkat Ali and Ashiq Ali, who ran away into their houses and the accused persons chased them. Mst. Nusrat Bibi wife of Muhammad Mussaddiq came out of the house and also sustained injury by the firing of the accused. The motive behind the occurrence was stated to be the previous enmity.

3.The learned counsel for the petitioners has contended that the petitioners have been involved in this case with male fide intention just to blackmail them; that no overt act has been attributed to the petitioner No.1; that during the course of investigation, the petitioners have been declared innocent; that they were not present at the time and place of occurrence; that motive part is not attributed to the petitioners; that nothing incriminating material is available on the record to connect them with commission of the offence; that the petitioners are previously non convict and non record holders so they are entitled to the concession of the pre-arrest bail.

4.Learned counsel for the complainant has vehemently opposed the petition. It is contended that the petitioners are nominated in the FIR with specific role; that recovery of the weapon of offence is yet to be effected from them so person of the petitioners are required for further investigation; that there is no ill-will on the part of the complainant party to falsely implicate the petitioners in the case and that sufficient material is available on the record to connect them with commission of the offence so they are not entitled to the concession of bail.

5.The learned Law Officer contends that the names of the petitioners were placed by the police in Column No.2 of the challan and issuance of summon against the petitioners are not warranted under the law. Learned counsel further submitted that the police has let off the petitioners on consideration of sufficient material available in shape of CDR and statements of respectable persons and submits that case of bail is made out.

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

7.The arrest of the petitioners namely Hadayat Ali and Rafique Ahmad was deferred by the I.O and both were declared innocent as

they were not found present at the spot at the time of occurrence by the police in all the two investigations. Initially the investigation was conducted by Arif Khan, Sub Inspector, who declared the petitioners innocent. The same conclusion was drawn by Umer Draz Magsi, ASP during the second investigation but their names were placed in column No.2 of the report under section 173 Cr.P.C. In both the investigations carried out by the local police, Raja Nadeem and Waqar @ Waqari co-accused of the petitioners were found to be responsible for the occurrence. The petitioners were summoned by the trial court to face trial, on which both the petitioners applied for pre-arrest bail. The petitioner No.1 Hadayat Ali has been allegedly shown armed with fire arms but he had not fired at the deceased while role assigned to him was of ineffective firing. The petitioner No.2, Rafique Ahmad has been allegedly shown armed with fire arm at the scene of the crime and allegedly he had caused injury on the shoulder of deceased, whereas, involvement of the petitioner No.2 was not found in two successive investigations. Final investigation was conducted by Umar Daraz Magsi, Assistant Superintendent of Police, who also after accepting the plea of alibi based on telephone data and statements of respectables, declared the petitioners innocent. Although the findings of police is not binding on the Court but same can not be ignored. It is held by the Hon’ble Supreme Court of Pakistan in the case of “Ghulam Rasul vs. The State” (1982 SCMR 440) wherein it is observed as under:- “Sufficient weight has to be attached to the result of the Investigation particularly when an accused is placed in Column No.2 on account of it”.

Keeping in view, the dictum of law laid down by the august Supreme Court of Pakistan in a case of “Meeran Bux vs. The State and another” (PLD 1989 SC 347). The Court while deciding the pre- arrest bail can touch the merits of the case i.e. previous animosity between the parties, unchallenged findings of the police in two successive investigations and as the petitioners were let off by the police. It is held in the case of “Muhammad Mumtaz and three others vs. The State” (1988 SCMR 1452) wherein it is observed as under:-

“In the light of arguments advanced, we agree with the learned counsel for the appellants that there are aforesaid three infirmities in the impugned orders passed by the learned single Judge of the Lahore High Court, Lahore in this case. Both the sets of the appellants in the course of investigation had been found innocent by the police and their names have been placed in Column No.2. In these circumstances, bail should have not been refused to them on the grounds recorded by the learned single Judge in the impugned orders”.

8.All this shows that the prosecution in this case itself has two versions viz-a-viz the petitioners. According to the complainant, petitioners were present at the spot and had indulged in firing upon complainant party and petitioner No.2 also fired at deceased, whereas according to the two successive investigations, both petitioners were not present at the spot. These peculiar circumstances of the case render the case of petitioners one of further inquiry.

9.For the foregoing facts and circumstances, this Court is persuaded to accept this petition. Resultantly by allowing this petition, ad-interim pre-arrest bail already granted to the petitioners in terms of order dated 19.12.2013 is hereby confirmed subject to their furnishing fresh bail bonds in the sum of Rs.1,00,000/-each with two sureties in the like amount to the satisfaction of learned trial court.

(Aalia Neelum) Judge

Approved for reporting.

Judge

A.S.Khan