1. ' Petitioner Saqib Najeeb son of Ashiq Hussain seeks after arrest bail in case F.I.R. No. 926, dated 13- 10-2003 under sections 458, 506, 337-A(i), (ii), 109/34, P.P.C. Registered at Police Station Ghulam Muhammad Abad, Faisalabad at the instance of Sheikh Ijaz Ahmad.
2. ' The brief facts of the prosecution case are that on 13-10-2003 at about 6 p.m. When the complainant was present in his house, Raja Aamer and Saqib Najeeb (petitioner) alongwith an unknown person trespassed into his house armed with deadly weapons and caused him injuries.
3. Thereafter, they fled away alongwith one co-accused who was sitting in the driving seat of the car outside the house. The occurrence was witnessed by Haris Ali and Naseer Ishaque. The occurrence took place allegedly at the instance/abetment of Malik Nadeem and Raja Nadir Pervez.
4. ' The petitioner was arrested on 2-12-2003 and after completion of investigation he has been sent to judicial lock-up. He was declined after arrest bail by the learned Addl. Sessions Judge, Faisalabad vide order, dated 6-2-2004. Hence this petition.
5. ' Learned counsel for the petitioner have argued--
(a) that although the petitioner remained on physical remaind for 13 days but no weapon of offence has been recovered from his possession;
(b) that according to the medico-legal report six injuries were caused to the complainant but no specific injury has been attributed to the petitioner which makes his case of further inquiry.
6. Reliance has been placed on 1994, PCr.IJ 511;
(c) that out of five accused, two namely, Nadeem Malik and Raja Nadir Pervaiz have been found innocent and have been discharged, therefore, case against the petitioner is also doubtful and of further inquiry;
(d) that the petitioner is not involved in motive part of the occurrence as he was admittedly not present when alleged altercation had taken place, therefore, by placing reliance on 1995 PCr.L.I 930 it has been argued that case of the petitioner is of further inquiry;
(e) that both the eye-witnesses namely Haris Ali and Naseer Ishaquegot their statements recorded under section 161, Cr.P.C. Wherein they had stated that the accused while causing the injuries to the complainant dragged him into the lane which shows that the occurrence took place in the lane outside the house of the complainant and not in the manner described by the complainant; (0 that at least 64 independent witnesses were examined by the I.O. And all of them stated that the occurrence took place in the bazaar and the accused were not armed with any weapon. All of them, unanimously, stated that the present petitioner and Raja Amir injured the complainant with fists and blows;
(g) that both the eye-witnesses are closely related to the complainant and no independent witness has been examined during the investigation;
(h) it has been vehemently argued that section 458, P.P.C. Has not been attracted to the facts and circumstances of the case as there was no lurking house trespass.By night. This was the finding of the DSP who stated that section 458, P.P.C. Is only being applied as the SP (Legal) has ordered;
(i) according to the eye-witnesses cited in the F.I.R. The occurrence took place at 5-30 p.m. Which was not of night as required by provisions of section 458, P.P.C. Rather it was the "evening" time. As per The Random House Dictionary of the English Language definition of 'evening' means later part of the day and-early part of the night; also as per chart of month of Ramazan, 2003 the sunset time at Faisalabad was at 5-45 p.m. Which means that the occurrence took place before the sunset and if section 458, P.P.C. Is not applied then the case is under section 452, P.P.C. Which does not fall under the prohibitory clause of section 497, Cr.P.C;
(j) the petitioner is behind the bars for the last three months but so far challan of the case has hot been submitted, therefore, it has been prayed that the petitioner is entitled for concession of bail;
(k) it has been also argued that he is political worker and has been falsely implicated due to political differences between two leaders.
7. ' The petition was been opposed by learned counsel for the complainant who have argued that the petitioner was nominated in promptly recorded F.1.R. With specific role and there is no reason for hisfalse implication or substitution by letting off the real culprit. He has been found guilty during the investigation and he is previously involved in as many as 8 cases of similar nature, therefore, he is hardened and desperate criminal. By placing reliance on 1984, PCr.LJ 2340 titled Muhammad Akhtar v. State and PLD 1997 SC 545 Imtiaz Ahmad and another v. The State, it has been argued that even if the case does not fall under the prohibitory clause the bail cannot be claimed as a right. Learned State counsel has also toed the arguments of learned counsel for the complainant.
8. ' In reply learned counsel for the petitioner has argued that mere registration of F.I.Rs. Does not make the petitioner hardened and desperate criminal unless he is convicted in any criminal case but the petitioner is previously non-convict.
9. ' I have given the due consideration to the contentions raised at the bar and also examined the record as well as case-law referred to.
10. ' According to the F.I.R. The occurrence took place at about 6 p.m. On 13-10-2003 and the F.I.R. Was lodged through written application of the complainant at 7-45 p.m. Who was removed to the hospital in injured condition which shows that the petitioner was nominated in promptly recorded F.I.R. He was known to the complainant and to the P.Ws as he is resident of the same locality, therefore, there is no question for his false implication, substitution or mistaken identity. He has been found guilty during the investigation. According to the witnesses cited in the F.I.R. And 64 other witnesses recorded by the Investigating Officer the petitioner alongwith his co-accused Raja Amir committed the instant offence. The involvement of the petitioner in the offence has neither been denied nor seriously challenged. The argument of learned counsel for the petitioner that according to the P.Ws cited in the F.I.R. The occurrence took place at 5-30 p.m. And the complainant was dragged by the accused in the lane cannot be taken into consideration because the same requires deeper appreciation of evidence and this exercise cannot be undertaken at this stage. As per record section 458, P.P.C..Stood added at present in the challan/report under section 173, Cr.P.C.
11. The opinion of the DSP is not binding on the Court. It is settled law that even if the ease does not fall under the prohibitory clause the accused cannot claim bail as of right as held in the following judgments:-- ' Dr. Ghulam Sarwar Bhatti v. The State PLD 1993 Lahore 110.Imtiaz Ahmad and another v. State PLD 1997 SC 545.Muhammad Akhtar v. State 1984 PCr.LJ 2340.
12. ' Although the petitioner is not convicted in any case previously but his involvement in eight cases of similar nature is sufficient to declare him habitual offender and there is apprehension that if he is released on bail he may repeat the offence as he seems to be a political `Ghuncia' other than a political worker and is involved in humiliating the public representatives, therefore, does not deserve any leniency or sympathy. The presence of both eye-witnesses namely, Haris Ali and Naseer Ishaque at the spot being close relatives cannot be doubted. They are the natural witnesses. It is the tendency of the people that independent persons do not come forward to depose against the accused due to fear of their lives :lid dignity.
13. ' It is to be seen by the trial Court after recording of evidence whether the offence committed by the petitioner falls under section 458, P.P.C., or 452, P.P.C. The case-law referred to by learned counsel for the petitioner is not applicable to the facts and circumstances of the case. The petition is dismissed.