This order shall dispose of Crl. Misc. No, 3211-BC/2005 filed by the complainant Ch. Abdul Majid for cancellation of bail after arrest granted to accused Shahid @ Shadi vide order dated 18.4:2005 passed by Mehr Muhammad Yousaf Additional Sessions Judge, Faisalabad and Cr1. Misc. No, 3323- B/2005 filed by accused Muhammad Azeem Anwar Ansari for the grant of bail after arrest.
2. Learned counsel for the petitioner, in support of Crl. Misc. No, 3323-B/2005 filed by accused Muhammad Azeem Anwar Ansari for the grant of bail after arrest, submits that case of the petitioner is on similar footing to that of Sheraz Qamar who was allowed bail by this Court vide order dated 25.4.2005 passed in Cr1. Misc. No, 2617-B/2005; that though seven witnesses have been examined yet the case of the petitioner is one pf further inquiry; that the post-mortem report negates the version of the prosecution because there is only one fire-arm injury on the person of the deceased; that the act of calling the deceased from his house does not mean that he was called in order to get Asif deceased murdered; that no recovery was affected from the petitioner; that the involvement of the petitioner in this case is the result of party faction; that to his extent, case is one of further inquiry and he is entitled to the concession of bail. Learned counsel has relied on PLD 2004 SC 477, 1997 SCM R 32, 1979 SCM R 9, 1983 SCMR 124, 1980 SCM R 142 and 1996 P.Cr.L.J.
1302.
3. As far as Cr1. Misc. No, 3211-BC/2005 filed by the complainant Ch. Abdul Majid for cancellation of bail after arrest granted to accused Shahid @ Shadi vide order dated 18.4.2005 passed by Mehr.
Muhammad Yousaf Additional Sessions Judge, Faisalabad, learned counsel for the petitioner submits that the respondent while armed with a pistol placed the same on the neck of the deceased and fired which proved fatal; that the DSP Ch. Shakeel Ahmad had investigated this case who ultimately found the respondent guilty of the offence; that later on under the grab of verification of the said investigation, SP (Investigation) Faisalabad Mr. Khalid Abdullah declared the respondent innocent and also found that it was one Umar who fired at the deceased; that copies of the statements of the eye-witnesses under Section 265-C Cr.P.C. were supplied to the accused and the case was adjourned for framing of charge for 16.4.2005 on which date the case was adjourned to 18.4.2005, the charge was framed on the said date and bail to the respondent was also allowed by the learned trial Judge on 18.4.2005 notwithstanding the fact that the learned Additional Sessions Judge, Faisalabad Mehr Muhammad Yousaf was fully aware that the charge had been framed and the case was going to start shortly; that the passage of the impugned bail granting order is a very detailed order whereby in fact he has decided the case and has prejudiced the case of the complainant party; that after the arrest of the respondent on 5.12.2005 the weapon of offence i,e, the pistol was recovered from the respondent; that he is fully connected with the commission of the offence which falls within the prohibitory clause of Section 497(1) Cr.P.C. and that it was not a case of bail which may be cancelled by this Court.
4. On the other hand, while defending the bail granting order, learned counsel for the respondents submits that the respondent was found innocent by Rashid Ahmad Tahir Inspector (Investigation) and SP (Investigation) Mr. Khalid Abdullah; that as far as investigation conducted by the concerned DSP, it has no evidentiary- value in view of the investigation conducted by SP (Investigation); that seven witnesses have been examined by the learned trial Court and the case is fixed for evidence and that, in the afore-referred circumstances, it is not a case of bail cancellation of the respondent.
In support of the submissions, learned counsel was relied on PLD 1989 SC 585.
5. Learned counsel for the State, however, submits that respondent Shahid @ Shadi is named in the FIR, a specific role of firing at the deceased, which proved fatal, is attributed to him, he is the main accused in this case and has wrongly been granted bail by the learned Additional Sessions Judge.
Learned State counsel, while advancing his arguments, submits that as far as case of Muhammad Azeem Anwar Ansari petitioner in Crl. Misc. No, 3323-B/05 is concerned, his case is distinguishable from Sheraz Qamar who was allowed bail by this Court vide order dated 25.4.2005 passed in Cr1.
Misc. No, 2617-B/2005 because the said accused never went to the house, of the deceased and never called him out and that it is not a case of bail to his extent.
6. I have heard learned counsel for the parties in both the bail petitions, have given consideration to the submissions made at the bar, have also gone through the record and the precedent case law cited by the ,respective parties in support of their submissions.
7. It is pertinent to mention here that I had dismissed bail before arrest petition of accused Shahid @ Shadi vide this Court's order dated 5.11.2004 passed in Crl. Misc. No, 8248-B/2004 on the ground that the said accused was the main accused in this case, he was armed with pistol and fired a shot by putting the barrel of pistol on the neck of the deceased Asif Ali who died in consequence to the said injury. He surrendered his person to the police after a period of one month of the dismissal of the above bail before arrest petition i,e, on 5.12.2004. During the course of investigation, he led to the recovery of the weapon of offence i,e, pistol on 20.12.2004. He is the main accused in the case.
The allegation against him is that after putting the barrel of the pistol on the neck of the deceased, he fired a single shot which proved fatal. DSP Ch. Shakeel Ahmad has declared the respondent as guilty of the offence. As far as investigation by Inspector (Investigation) Rashid Ahmad Tahir and especially SP (Investigation) Mr. Khalid Abdullah is concerned, they opined that it was Umar co- accused who had caused the fatal injury on the person of the deceased but they failed to cite any witness in the calendar of witnesses in this regard. I am unable to understand as to how they came to the said conclusion. I would only say that they did not apply their mind while reaching at the said conclusion especially when there was no material on record in support of their above opinion. On the other hand, there are three/four witnesses who have fully supported the prosecution case as far as role of respondent. Further more, recovery of pistol has been affected from the respondent.
Even otherwise, it is settled law of the Apex Court of the country that opinion of the police is not binding on the Court. More over, the learned Additional Sessions Judge has granted bail to the respondent at a stage when he had distributed copies of the statements to the accused persons under Section 265-C Cr.P.C., had himself framed the charge on 18.4.2005 and the very interesting aspect of the case is that on the same very day i,e, on 18.4.2005 he allowed bail to the respondent.
It is settled principle of law that bail is not granted to accused persons when the trial has started. In the afore-referred circumstances. This Court is of the, prima-facie, view that it was not a case of bail after arrest as far as respondent Shahid g Shadi accused is concerned as his case falls within the prohibitory clause of Section 497(1) Cr.P.C. The result is that Crl. Misc. No, 3211-BC/2005 is allowed, the bail allowed to the respondent/accused Shahid @ Shadi vide order dated 18.4.2005 passed by Mehr Muhammad Yousaf Additional Sessions Judge, Faisalabad is cancelled and he shall be taken into custody. In this regard I am fortified by a judgment of the Apex Court of the country repotted in Habibullah Khan Kundi vs. The State (2004 SCM R 1164), after having given reference the case of Shah Nawaz and 2 others vs. The State (PLD 1994 SC 65), the accused persons, who were attributed injuries on the persons of the deceased, were allowed bail, their bail was cancelled by the Hon'ble Supreme Court.
8. Now I would take up the case of petitioner Muhammad Azeem Anwar Ansari in Crl. Misc. No, 3323-B/2005. His case is distinguishable from that of co-accused Sheraz Qamar and the facts and circumstances given in the precedent case law cited by the learned counsel for the petitioner are altogether different and are not applicable in this case. He was the person who went to the house of the deceased Asif alongwith Ilyas, brought him on the pretext that Shahid accused was calling him, thereafter, the occurrence had started which led to the death of the deceased. While allegation against the said Sheraz Qamar is that he caught hold of deceased whereafter accused Shahid fired a shot at him. At the time of hearing of bail petition of Sheraz Qamar no body either the petitioner or the State or-the SI, had informed this Court that the charge had been framed. Had it been brought to the notice of this Court at the said time, I could-not have granted bail to the said gheraz. Qamar.
9. As far as case of Muhammad Azeem Anwar Ansari )etitioner in - Crl. Mis. No, 3323-B/2005 is concerned, his case is not of further inquiry. His case falls within the prohibitory clause of Section 497(1) Cr.P.C. and is not a fit cape for the grant of bail. Even otherwise, every case is not a case of further inquiry. In this regard reliance is placed on Sardar Munir Ahmad Dogar vs. state (PLD 2004 Supreme Court 822), wherein while commenting t "further inquiry" and "ipsi dixit of the police" at page 828 of the citation, in para 10, it was held as under: "10. It may be noted that now it is a settled principle of law that if, an accused succeeds in making out a case of further inquiry, he is entitled for grant of bail because invariably such plea is available in every case. Reference in this behalf may be made to the case of Asmatullah Khan vs. Bazi Khan (PLD 1988 SC 621) and Nasreen vs. Fayyaz Khan (PLD 1991 SC 412). Relevant para, from the latter judgment is reproduced herein below: "Lastly, the question of prima-facie, opinion about the guilt of the accused under sub-section(1) of Section 497 Cr.P.C. or -sub-section (2) thereof has not been properly examined in the impugned order. The easy contrivance of 'further inquiry' against positive rulings of this Court explaining the provisions of Section 497(2) Cr.P.C. was pressed into service. It has been observed time and again that there would hardly be a case which should not require 'further inquiry', therefore, this element, by itself, is no ground for granting bail under sub-section (2) of Section 497 Cr.P.C. Such orders are, on their very face illegal which do not fulfill the second, condition regarding tentative opinion about the prima-facie guilt or otherwise of the accused."
With reference to above principle, this Court in the case of Shohaib Mehmood Butt (ibid), which has been relied upon by the learned counsel for the petitioner, has held that every hypothetical question, which can be imagined, would not mean that it is a case of further inquiry simply for the reasons that it can be answered by the Court subsequently after evaluation of evidence. Broadly Speaking, the condition laid down in clause (2) of Section 497 Cr.P.C. is that there are sufficient grounds for further inquiry into his guilt which means that the question should be such which has nexus with the result of the case and may show or tend to show that the accused is not guilty of the offence with which he is charged ....".
This Court has further placed reliance on Muhammad Sadik and others vs. The State (1980 SCM R 203), wherein while discussing the question of fixation of trial and grant of bail, the August Supreme Court of Pakistan, held as under: In that view of the matter we think that when the trial is to commence shortly and a date has already been fixed by the Court, it is not fair to go into the merits of the case in the form of a bail application at this juncture, and the case is therefore, not fit for grant of special leave to appeal."
In the afore-referred circumstances I find no merit in Crl. Misc. No, 3323-B/2005 (Muhammad Azeem Anwar Ansari vs. The State), which is hereby dismissed.
10. Before parting with this order, I am inclined to send a copy of this order to the learned Sessions Judge, Faisalabad for information coupled with a copy of this order to the Mehr Muhammad Yousaf, Additional Sessions Judge, Faisalabad, for his future guidance.