' Petitioners Shakil Haider, Ansar, Muhanitnad Zafar and Razaq alias Zakir through the instant petition have sought for after arrest bail in case F.I.R. No,335, dated 7-9-2003 under sections 302/324/148/149, P.P.C. Registered with Police Station Jhaal Chakian, District Sargodha. Later on, the police has added the section 109, P.P.C. In the same.
2. The precise allegation against them is that they on 7-9-2003 at about 3-30 p.m. Near Ashraf Hospital, when Aqeel Haider was armed with .12 bore pump action, Zafar with rifle, Razzaq alias Zakir with rifle, Ansar Hayat with .12 bore single barrel gun and one Sikandar Hayat with .12 bore double barrel gun have waylaid the complainant party while they were on their way to their house from Mauza Lak on motorcycle and two cars. Aqeel Haider fired at Aamar Sohail, the maternal-grandson of the complainant, which hit on his both arms. They thereafter, got them down forcibly from the vehicles. Aqeel Haider fired second shot at Muhammad Ilyas which it him at the right side of his chest and the third fire shot at Aamir Sohail hitting on his left thigh. In the meanwhile, a white colour Dalla of double cabin came there. Ansar Hayat, empty handed, Shakeel Haider and Muhammad Afzal with lethal alighted down from the same. Nasar Hayat took his double-barrel licensed gun with the bag containing cartridges from his car and they resorted to ariel firing and remained raising Lalkaras that if anybody came near them, would be killed. Then, Sikandar Hayat fired two shots consecutively at Muhammad Suleman, the son of the complainant, which hit on the front of his neck and left elbow. Muhammad Ashraf, who was in the car was also injured during the same.
The accused, thereafter, went away brandishing their weapons. Muhammad Akram, Muhammad Aslam and Muhammad Khan were attracted to the spot and they witnessed the occurrence. The injured were taken to the Civil Hospital, Sargodha where Muhammad Ilyas succumbed to his injuries, while Muhammad Suleman was referred to Lahore due to his precarious condition. Aamir Sohail and Ashraf injured were admitted in the hospital.
3. It has been argued on behalf of the petitioners that they have falsely been roped in with mala fide intention on the part of the complainant party; that no injury to anyone has been attributed to them; that in three investigations conducted by different Police Officers up to the rank of the S.P., they were found innocent in the matter; that in the investigation conducted by the S.P.
(Investigation) Sargodha, the complainant neither himself appeared nor he produced his eye- witnesses before him; that ultimately the report for their discharge from the case was prepared though the same was not agreed to by the learned Magistrate concerned and it was so erroneously; that their names were entioned in the Column No,2 of the report under section 173, Cr.P.C. Submitted in the Court; that it has clearly been mentioned in the same that they were absolutely innocent in the matter; that no crime-empty was recovered from the spot and even no weapon of offence from them and so their case is covered under subsection (2) of section 497, Cr.P.C. Calling for further inquiry into their guilt; that they are behind the bars and previous non- convicts; and that their trial has not yet commenced and even otherwise the commencement of trial is no bar to grant of bail to them.
4. Conversely, the learned counsel for the State assisted by the learned counsel for the complainant though has opposed the petition but has conceded that the petitioners during the investigation have been found innocent.
5. However, the learned counsel for the complainant has contended that the is dixit of the police is not binding upon the Court and the same, even otherwise, is not based upon the sound material on the record; and that they are persons of not good character.
6. I have carefully considered the submissions made by both the sides with the help of the available record.
7. According to the F.I.R., the petitioners in the main incident on 7-9-2003 had remained raising Lalkara and firing in the air. According to the same, they neither had caused injury to anyone nor aimed firing at anyone. They according to the same in the incident on 26-8-2003, 29-8-2003, as mentioned therein have also not been specially attributed any overt act.
8. They admittedly during the investigation by the different Police Officers like Asmat Ullah S.-I., Waqar-ud-Din Haider, A.S.P. Sargodha and S.P. (Investigation), Sargodha have been found to be not involved in the matter.
9. It has been found from the copy of the request prepared by the S.P. (Investigation), Sargodha on 14-1-2004 that the complainant had avoided to appear before him as well as to produce eye- witnesses before him during the investigation. He has mentioned that he has not cooperated with him during the investigation.
10. It has also been borne out from the police record that the report for their discharge from the case was prepared though the same was not agreed to by the learned Magistrate concerned. The police in the same have opined that they were innocent in the matter.
11. In the incomplete report under section 173, Cr.P.C. It has been mentioned that they are absolutely innocent in this case. Their names have been placed in Column No,2 of that report.
12. Furthermore, admittedly no empty of their alleged weapons has been recovered form the spot.
Even, no recovery of crime weapon was effected from any of them.
13. It may be mentioned here that though the opinion of the police is not binding upon this Court but still it is relevant circumstance to be taken into consideration while deciding the question of grant or otherwise of bail.
14. It may also be mentioned here that the finding of their innocence is based upon the material available on the record and it is not without any basis.
15. In these circumstances, there is no reason to believe that they have committed a non-bailable offence and rather there is ground for further inquiry into their guilt. Their case, therefore, is covered under subsection (2) of section 497, Cr.P.C,
16. It has not been denied by the learned State or complainant's counsel that their trial as yet has not commenced.
17. In these circumstances, I find that they are entitled to bail. In this regard reliance is placed upon the cases of Abdul Rehman v. Javed and 2 others 2002 SCM R 1415, Dr. Muhammad Aslan v. The State 1993 SCM R 2288 and Nek Muhammad v. The State 1991 SCM R 1630.
18. They are behind the bars and admittedly previous non-convict.
19. The petition, therefore, is accepted and they are admitted to bail subject to their furnishing bail bonds in the sum of Rs,1,00,000 (Rupees one lac) each with one surety each in the like amount to the satisfaction of the learned trial Court.