Muhammad Hafeez alias Babu son of Muhammad Habibullah, the petitioner, by filing the instant petition seeks his pre-arrest bail in case F.I.R. No, 622, dated 2.11.2004, registered at Police Station Harbanspura, Lahore, for offences under Sections 302, 324, 34 P.P,C. at the instance of Muhammad .Mushtaq son of Haji Muhammad Younas.
2. The case of the prosecution as it unfolded in the F.I.R. was that the complainant was resident of Harbanspura, Lahore and was running a shop of spare-parts; on 2.11.2004 in the evening, he alongwith Amjad Ali son of Haji Muhammad Yousaf, Muhammad Ilyas and his son Waqas were on their way to their house from Awais Property Dealer's office; at 5.00 p.m. when they reached Phattianwali Puli, Riaz alias Raja and his son Fareed, armed with pistols riding a motorcycle, whereas two unknown persons, who were also carrying .30-bore pistols and riding another motorcycle, overtook their motorcycles and placed one of the motorcycles in front of the motorcycle driven by Muhammad Ilyas and stated that they would not leave him and his son Waqas alive; Riaz alias Raja fired three/four shots one after the other at Muhammad Ilyas, which hit the latter on the abdomen; thereafter Farred also fired at Muhammad Ilyas and Waqas; however, the latter luckily escaped, but one of the fireshots hit Muhammad Ilyas in the abdomen; the two unknown persons fired with their respective weapons; Muhammad Ilyas after having been seriously injured because of the firing fell down, whereupon Riaz alias Raja and others ran away from the spot while indulging in firing and raising Lalkaras. According to the complainant, he alongwith Amjad Ali and Waqas removed Muhammad Ilyas to the hospital for treatment.
The motive according to the complainant was that Riaz alias Raja's brother Shafiq was married to a sister-in-law of Muhammad Ilyas and there was some matrimonial dispute and keeping in view the said grudge, Riaz alias Raja and his son Fareed with their companions had seriously injured Muhammad Ilyas. Resultantly, the instant F.I.R. had been recorded.
3. The petitioner applied for his pre-arrest bail before the Court of Sessions, which had been dismissed by the learned Additional Sessions Judge, Lahore vide his order dated 29.11.2004. Hence, this petition.
4. Dr. Khalid Ranjha, the learned counsel for the petitioner argued that the petitioner had not been named in the F.I.R. inasmuch as he was not Riaz alias Raja, but his actual name was Muhammad Hafeez alias Babu son of Muhammad Habibullah; that even if it is presumed that the petitioner is Riaz alias Raja, he is entitled to the concession of pre-arrest bail, in that on the fateful day i,e, 2.11.2004 he was locked up in prison at Peshawar having been involved in case F.I.R. No, 803/2004, registered at Police Station Dawoodzai, Peshawar for an offence under Section 13 of the West Pakistan Arms Ordinance No, XX of 1965; that as per documents appended with this petition, the petitioner had been released from Central Jail,. Peshawar on 4.11.2004 after he had pleaded guilty of having been in possession of an illegitimate 32-bore revolver and had been sentenced to rigorous imprisonment for five days with a fine of Rs, 100/- or in default of payment thereof to further undergo simple imprisonment for one day by the learned Judicial Magistrate First, Peshawar; that plea of alibi raised by the petitioner was very strong and made the case of the petitioner one of further inquiry within the meanings of sub-section (2) of Section 497 Cr.P.C. The learned counsel for the petitioner finally submitted that there are twelve affidavits of various respectable persons available on the police file vouching for the innocence of the petitioner including an affidavit of Muhammad Saqib Siddique, Member Provincial Assembly.
5. Conversely, Malik Abdul Sattar Chughtai, the learned counsel for the complainant assisted by Mr. M. Saleem Shad, the learned counsel for the State opposed the grant of pre-arrest bail and submitted that the plea of alibi was in the normal circumstance not available to an accused person in a murder case, especially while seeking pre-arrest bail. In this connection he relied on lqbalur Rahman v. The State (PLD 1974 SC 83), Waqar-ul-Haq v. The State (1985 SCM R 974), Bahadur v. Muhammad Latif and others (1987 S.C.M.R. 788) and Jan Muhammad v. Abdul Latif and 3 others (2003 M.L.D. 72).
6. After hearing the learned counsel for the parties at length and going through the record brought by Abbas Ali, SI, it has straight away been observed that prima facie the petitioner has not been able to substantiate his claim that he had not been named in the F.I.R. or that Riaz alias Raja and Muhammad Hafeez alias Babu son of Muhammad Habibullah were two different persons. In this connection, when the learned counsel for the complainant confronted the petitioner with F.I.R. No, 332/1983, dated 23.9.1983, registered at Police Station Ravi Road, Lahore for offence under Section 302 P.P.C., wherein the name of the petitioner had been mentioned as Muhammad Hafeez Riaz son of Habibullah, he could not deny that he was not the said Muhammad Hafeez Riaz, who was nominated in the said F.I.R.
There appears to be some weight, in the contention of the learned counsel for the complainant that the petitioner has got several aliases, Riaz alias Raja being one of them. The Investigating Officer, present in Court with record submitted that he has thoroughly investigated the matter and was of the opinion that the FIR. had been lodged by the complainant party having been swayed by emotions inasmuch as they had shown the petitioner as the one, who made fireshots, whereas according to his investigation the petitioner had been lodged at Central Jail, Peshawar on the fateful day, but he opined in his investigation that the petitioner has been found to be the mastermind behind the entire occurrence and his present at Central Jail, Peshawar in a petty case of recovery of .32-bore revolver was a part of the larger plan. He also submitted that the other co- accused, both of whom happen to be the real sons of the petitioner, are running away from justice and have since been declared proclaimed offenders. He further submitted that investigation could progress only after the arrest of the petitioner, who could provide useful clues to the incident.
7. The main stand of the petitioner was that he had not been named in the FIR., a claim, which he has so far not been able to established. There are serious allegations against the petitioner and his co-accused. Even if the plea of alibi of the petitioner is accepted at a later stage, his involvement as an abettor or a conspirator cannot right away be ruled out. The case had been registered as far back as on 2.11.2004 and the petitioner has so far cleverly been able to elude the process of law.
The other two co-accused, who are his real sons, are still absconding. His plea of alibi at this stage cannot be gone into, as it would amount to entering into realm of deeper appreciation I of the material available on the record. The precedents cited by the learned counsel for the complainant are quite apt and advance the case of the prosecution. Extending the extra-ordinary relief of pre- arrest bail would amount to smothering the investigation, which is the statutory right of the police.
There is no merit in this petition, which is accordingly. dismissed.