' This order will dispose of Crl. Misc. No,4205/B of 2004 moved by Khursheed Alam and Crl. Misc.
No,4317/B of 2004 moved by Waheed Murad petitioners since both the petitions arise out of one and the same F.I.R.
2. Both the petitioners seek their post arrest bail in case F.I.R. No,17 of 2004 registered at Police Station Saddar, Toba Tek Singh on 1-2-2004 for offences under sections 302, 324, 148 and 149, P.P.C.
3. The prosecution case as unfolded in the F.I.R. Lodged by the complainant Mst. Fariha Naveed daughter of Naveed Alam was that the petitioners Khursheed Alam and Waheed Murad while armed with pump action gun and an iron rod respectively along with their co-accused Muhammad Asif son of Rab Nawaz, Rab Nawaz son of Zulfiqar, Sajjad Hussain and Abid Shah armed with .30 bore pistols and Mithu armed with .30 bore repeater, Bali armed with 7 mm rifle, Haq Nawaz armed with .32 bore revolver, and two unknown persons, had launched an attack when the complainant along with her father Naveed Alam and brothers Yasir Naveed and Basit Naveed were proceeding towards their home from their fields. According to the complainant the assailants had emerged from two Toyota cars and caught hold of her father Naveed Alam, dragged him, used abusive language and extended threats of murder. According to the prosecution story Khursheed Alam the petitioner made a fire shot hitting her father on the pelvis on the front side whereafter the accused persons started firing causing injuries to her father and brother Yasir Naveed and after that they decamped from the spot in the cars.
' The motive according to the complainant was that her father, Naveed Alam and Khursheed Alam petitioner, both of whom happened to be real brothers had a dispute over the distribution of agricultural land since long as a result of which the incident had taken place.
4. The petitioners had been arrested shortly after the incident. The bail plea of both the petitioners had been turned down by the learned Additional Sessions Judge, Toba Tek Singh by means of a consolidated order, dated 9-6-2004. Hence the instant petitions.
5. The learned counsel for Khursheed Alam petitioner in support of his plea for bail has argued that the petitioner has been falsely implicated in this case on account of enmity which existed between the parties and has been admitted by the complainant herself; that the petitioner had been residing in the United Kingdom since 1980 and had come to his native village recently on the death of his younger brother Tanvir Alam, Advocate and that he has been falsely implicated in the case; that during the course of investigation the Investigating Officer had recorded a definite opinion that the said petitioner though present at the scene was empty-handed and that the fire shot attributed to him had in fact been caused by Sajjad Hussan co-accused who according to the Complainant was also armed with a .12 bore repeater gun; that the repeater gun attributed to Sajjad Hussain had been recovered from him and the recovery of the said gun had been witnessed by Basit Naveed and Yasir Naveed the alleged eye-witnesses of the occurrence. He also argued that the petitioner was a heart patient suffering from Ishaemic Heart Disease (IHD) and Angina and that his proper treatment in the Jail Hospital was not possible. The learned counsel laid a lot of stress on the medical report of the Senior Medical Officer Jail (Annex-'D') to his petition wherein the doctor had stated that "continuous tension and stress due to detention in jail may prove fatal for him". He placed reliance on the case of Zakhim Khan Masood v. The State, 1998 SCM R 1065, in which case according to the medical report the ailment of the accused was likely to have hazardous effects on his life because stress and strain could aggravate his disease and the Honourable Supreme Court had observed that the accused who was undoubtedly sick needed treatment in conducive conditions free from any kind of pressure and that he could not have full peace of mind the custody which could surely make his recovery from ailment slow putting seriously his life to danger.
6. Mr. Fayyaz Ahmad Meer, the learned counsel for Waheed Murad petitioner stated that although the allegation against Waheed Murad was that he was armed with an iron rod but there is no allegation of any overt act on his part and that no blunt weapon injury had been suffered by the deceased or by the injured P.W. He also argued that he was just an employee (driver) of Khursheed Alam petitioner and since Khursheed Alam petitioner according to the police opinion was empty- handed at the time of occurrence, therefore, there was no occasion for the petitioner to have armed himself with an iron rod. Insofar as the question that he shared common intention with the rest of the co-accused, the learned counsel relied on the case of "Mumtaz Hussain and 5 others v.
The State, 1996 SCM R 1125. In the said case the Honourable Supreme Court had noted that the accused despite being allegedly armed with deadly weapons like rifle, gun and hatchet had only caused simple blunt injuries to some of the prosecution witnesses using the wrong side of their weapons, therefore, the question whether in such circumstances they shared common intention with their co-accused who caused death of the deceased needed further inquiry. He also relied on Attaullah and 3 others v. The State 1999 SCM R 1320 wherein the order of the High Court cancelling bail of the accused was set aside by the Honourable Supreme Court and bail was granted to the accused persons who were not alleged to have caused any injury to the deceased. Reliance has also been placed on Faraz Akram v. The State 1999 SCM R 1360 where the Honourable apex Court allowed bail to the petitioner as no overt act had been attributed to him except ineffective firing whereas the fatal shot had been attributed to the co-accused. The Honourable Supreme Court held that question of vicarious liability of the petitioner could be determined at the trial.
7. On the other hand Syed Mujahid Gillani, Advocate for the complainant and Mr. S.A. Irshad, Advocate for the State have vehemently opposed the grant of bail to the petitioners. They stated that it was a broad-daylight occurrence and the F.I.R. Had been promptly lodged; that there was no question of mistaken identity inasmuch as both the parties knew each other very well being closely related inter se; that specific roles have been attributed to the petitioners. They added that recovery of incriminating articles had been effected from the Dera of Khursheed Alam petitioner which showed his interest in the transaction. The learned counsel for the complainant also pointed out that the deceased had been making various applications to the police authorities wherein he had been expressing his fear that he would be murdered by Khursheed Alam petitioner. In this connection he also referred to Writ Petition No,937 of 2004 which had been filed by the deceased. It was argued that there was no reason for the complainant who was a young girl to have falsely implicated his real paternal uncle Khursheed Alam in this case. As far as the medical ground taken by the petitioner Khursheed Alam is concerned, the learned counsel for the complainant stated that there was no comprehensive report placed on the record to support the claim that the petitioner was a heart patient.
8. I have considered the arguments of the learned counsel for the parties at considerable length and have also carefully gone through the record brought by Ghulam Askari S.-I.
9. I have noticed that D.S.P./S.D.P.O. Saddar Toba Tek Singh had recorded a detailed Zimni bearing No,23, dated 27-3-2004 wherein he had opined that Muhammad Asif, Rab Nawaz, Haq Nawaz and Abid Hussain Shah accused persons were innocent and that even their presence at the spot had not been proved. Insofar as the petitioner Khursheed Alam and Waheed Murad are concerned while opining about their guilt he came to the conclusion that Khursheed Alam petitioner was not armed at the time of occurrence. There is no cavil with the proposition that opinion of the Investigating Officer or the police is not binding on the Court, but at the same time it has to be kept in mind that the said opinion being adverse to the prosecution creates doubt about the veracity of the prosecution case especially so if the said opinion had been recorded as a result of investigation which could not be labelled as arbitrary or fanciful. In this connection reference can be made to the case of Muhammad Afzal v. Nazir Ahmad and others 1984 SCM R 429, wherein the Honourable Supreme Court had held that the relevancy to the question of bail of the opinion of investigating agency in regard to the complicity of an accused person will depend on the soundness of material upon which it was based. It was held by the Honourable Supreme Court that if the investigation brings to light facts which may furnish prima facie a reasonable ground for believing that an accused though named in the F.I.R. Is not guilty the opinion of the Investigating Officer based on such facts will be relevant. Likewise in the case of Ameer Ali and another v. The State 1984 SCM R 521, the Honourable Supreme Court granted bail to the petitioners on the basis of finding recorded by the Investigating Officer that accused petitioners were not present at the scene of occurrence. In addition to this in case of Zulfiqar Ali v. The State 1996 M LD 1457 this Court had held that though opinion of the police was not binding on the Courts but being adverse to the prosecution would create a doubt regarding the veracity of prosecution story. According to the first version of Khursheed Alam petitioner recorded by, the then Investigating Officer on 22-2-2004 he had stated that neither he was armed not had made any fire shot and that he was ready to give oath in support of his contention. Admittedly there is enmity between the parties and the dispute about the distribution of the agricultural land is admitted by the complainant herself. I have also been told that although the challan has been submitted and the charge has been framed yet not even a single witness had been recorded so far. The learned counsel for the complainant has informed that the complainant has filed a private complaint in which the accused persons are likely to be summoned. Since a private complaint has been filed, therefore, the conclusion of the trial is obviously going to take some time. I would not like to comment on the merits of the case in detail lest it may prejudice the case of either of the sides. Suffice it to say that opinion of the D.S.P.
Regarding Khursheed Alam petitioner which on the face of it appears to be quite well reasoned, cannot be brushed aside altogether and on the basis of said opinion the case of the petitioner has become one of further enquiry within the meanings of subsection (2) of section 497, Cr.P.C. Even otherwise, there is a medical report on the record, dated 28-6-2004 sent by the Senior Medical Officer District Jail Jhang wherein it had been stated that Khursheed Alam petitioner is an old case.
Of Ischaemic Heart Disease and is taking medicines for this disease continuously. The said certificate also mentions the fact that he had been examined by a Cardiologist inside the Jail. According to the doctor continuous tension and stress due to detention may prove fatal for him. The prosecution does not deny that he is more than sixty years of age. As such the petitioner being a sick and infirm person would also be entitled to the concession of bail as envisaged by 1st Proviso to section 497, Cr.P.C.
10. Insofar as Waheed Murad petitioner is concerned, admittedly no overt act has been attributed to him and the only allegation against him is that he was only present at the scene while armed with an iron rod which he never used. He was just an employee of Khursheed Alam petitioner. The question of his vicarious liability would be determined at the time of trial and the precedents cited by the learned counsel noted hereinabove to lend support to his argument. Although charge has been framed but no evidence has yet been recorded. It is now well-settled that if the Court comes to the conclusion that the petitioners are otherwise entitled to the concession of bail it will not be deterred in extending the said concession to the petitioners even if the trial has commenced and the evidence is being recorded.
11. Resultantly these petitions are allowed and both the petitioners are admitted to bail. Khursheed Alam petitioner who is stated to be also a -British National shall deposit his passport(s) with the learned trial Court. He shall be released on bail subject to his furnishing bail bond in the sum of Rs,1, 00,000 (Rupees one lac) with two sureties each in the like amount to the satisfaction of the learned trial Court. -Whereas Waheed Murad petitioner shall furnish bail bonds in the sum of Rs,50,000 (Rupees fifty thousand) with two sureties each in the like amount to the satisfaction of the learned trial Court.##TE#
12. Before parting with this order I would like to add that the observations made hereinabove are tentative in nature and shall not influence the course of the trial in any manner.