The petitioner Muhammad Boota son of Ghulam Muhammad seeks his post arrest bail in case FIR No, 561 dated 13.10.2003 registered at Police Station Bhikhi, District Sheikhupura, for offences under Sections 147, 149, 109 and 302 PPC.
2. The case of the complainant Nargas Bibi as unfolded in the FIR as that on the day of occurrence at about 9.30 in the morning her husband Muhammad Hanif left for Sheikhupura City on his bicycle where the used to supply milk; she alongwith her daughter Qaisara Bibi and brother-in-law Muhammad Latif were watering the paddy field; that Muhammad Hanif had reached the road leading to Bahrrianwala about three acres away, when the petitioner alongwith his co-accused Muhammad Latif son of anonymous. Zameer Iqbal and Muhammad Sharif, all armed with axes, while Ghulam Dastagir armed with a chhuri emerged from the paddy field of Akbar where they were sitting in ambush; they forcibly made Muhammad Hanif to get down from the bicycle; she alongwith Qaisara Bibi and Muhammad Latif (her husband's younger brother) can towards him and beseeched the accused person to have mercy on her husband; Muhammad Latif raised a lalkara that Muhammad Hanif be taught a lesson for accusing them of cattle theft. Muhammad Sharif caused an axe blow which landed on the neck of her husband, Muhammad Boota petitioner inflicted axe blow which landed on the left side of his forehead. Muhammad Latif caused an axe blow on the left ear of her husband whereas Zameer Iqbal and Ghulam Dastgir caused blows with their respective weapons on the head of her husband who after sustaining serious injuries fell down; she and her daughter came forward to rescue Muhammad Hanif whereupon the accused persons while brandishing their weapons declared that if any one came near them he would be done to death. Muhammad Hanif died at the spot. The motive according to the FIR was that Muhammad Hanif deceased had litigation with Muhammad Tariq son of Muhammad Boota petitioner and Afzaal son of Siraj Din and on account of the said litigation the accused persons had stolen seven animals belonging to the complainant party about 7/8 months ago. Muhammad Hanif deceased had a suspicion on the accused persons which grudge was being nourished by the accused persons who caused his murder.
3. The petitioner was arrested on 25.12.2003 and is in custody. His application for grant of post arrest bail did not find favour with the learned Additional Sessions Judge who turned' down the same vide order dated 26.3.2004. Hence the instant petition.
4. I have heard Mr. M.S. Shad, the learned counsel for the petitioner. Mian Perviaz Hussain, the learned counsel for the complainant and Malik Manzoor Ahmad, Advocate for the State and have also gone through the record brought by Ghulam Murtaza, A.S.I.
5. The learned counsel for the petitioner argued that the petitioner was innocent and had been falsely implicated in this case; that during the course of investigation the petitioner had been found to be innocent and had been placed in Column No, 2 of the challan; that the Investigating Officer on the basis of special oath came to the conclusion that the petitioner was innocent; that no recovery had been effected from him and that two accused person namely Tariq and Afzaal have been released on bail, therefore, the principle of consistency demands that the petitioner be also extended the same concession.
6. On the other hand the learned counsel for the complainant vehemently argued that it was a day time occurrence and the FIR was recorded within one hour of the occurrence, therefore, there was no question of any mistaken identity or false implication. He also argued that the petitioner has been attributed a specific role in the FIR and the injury caused by him has duly been noted by the doctor who conducted the post-mortem examination to be fatal. He also argued that PWs are resolutely sticking to their stance and that even otherwise in view of the facts and circumstances of the case the petitioner was vicariously liable for his act.
7. I have considered the arguments of the learned counsel at considerable length.
8. The perusal of the record reveals that the complainant as also the other eye-witnesses fully implicate the petitioner. He has been attributed a specific role of having caused a serious injury on the forehead of the deceased which finds full support from the post-mortem report. I have also noticed that the Sub Inspector who had held the petitioner to be innocent during the investigation on the basis of Qasm, Nian, had been departmentally proceeded against for conducting a defective and dishonest investigation in this particular case. It was only on account of the said Qasm, Nian that the petitioner had been held to be innocent, however, his name finds mention in Column No, 2 of the challan. He was summoned by the trial Court to face trial where he alongwith his co-accused have been charge-sheeted on 5.6.2004. The trial has commenced and the defence has already obtained two dates on account of non-availability of their counsel. Reliance of the learned counsel for the complainant on the case of Imtiaz Ahmad and others versus The State, 1986 SCM R 192, advances his contention that the Investigating Officer could not assume the role of a judge and that the innocence or the guilt has to be adjudged by the trial Court after recording the evidence of the witnesses produced by the parties and evaluating the same. The precedents relied upon by the learned counsel for the petitioner. Zulfiqar Ali versus The State PLJ 1997 Cr.C. (Lahore) 259 and Muhammad Arif Hussain versus State, PLJ 1998 Cr.C. (Lahore) 1474 proceed on distinguishable facts and do not advance the case of the petitioner for the grant of bail. I see not merit in this petition which is accordingly dismissed.