' Vide an F.I.R. No.137 Police Station Paroa dated 30-7-2004, the complainant Rahim Dad charged four persons (including the present three petitioners) for having effectively fired on him as well as on his brother Baran and the mare. The petitioners had sought their bail from the forum below where they could not succeed and hence this petition.
2.Learned counsel for the petitioners argued that practically four persons were charged and Bashir was earlier released by this Court on bail vide order dated 1-11-2004 whereas the request of Amir Bakhsh alias Amir was declined. The other two petitioners i.e. Muhammad Ismail and Muhammad Anwar had not earlier applied for bail as they were not arrested by them. The learned counsel pointed out that the present petitioners along with Amir Bakhsh, whose request was rejected earlier, are seeking the bail on fresh ground of the opinion of the arbitration committee constituted for the resolution of dispute between the parties whereafter the investigating agency i.e. Circle Officer Investigation has observed that the arbitrators, on the basis of the evidence collected from disinterested witnesses of the area, have concurred on two points firstly; that it was not a one sided aggression rather it was a case of cross firing and secondly; that two of the accused were not present at the scene of occurrence. Learned counsel for the petitioners further pointed out that there was a delay of 1-1/2 hours in the lodging of report and during this period, the possibility of consultation and preparation for false implication cannot be excluded. It was also stated that various types of injuries have been caused but it has yet to be determined as to who caused which injury and it was argued that the availability of empties at various points may not be a sufficient determining factor and since the investigation is complete, therefore, further detention of the accused shall not be of any benefit.
3. Learned Deputy Advocate-General, assisted by learned counsel for the complainant, argued that the detailed analysis of the merits and facts of the case cannot be done at the bail stage and that the earlier order of this Court was based on the reasons that no empty was recovered from the site where accused Bashir was shown while the present three petitioners were shown in the site plan at the places where the empties were recovered and that too, of the type of weapon stated in the F.I.R. In possession of each of the accused. It was also argued by the learned counsel for the complainant that no arbitration proceedings were conducted and the so-called inquiry was held at the back of the complainant and the allegations of cross firing are baseless because no F.I.R.
Has been registered by the other party.
4. While examining the arguments of learned counsel for the parties and the record, one is driven to the conclusion that although the detailed appreciation of facts is not possible at the stage of bail but the delay of 1-1/2 hours in lodging the F.I.R. Where the distance between the scene of occurrence and the Police Station is only 4/5 kilometers is of significant importance particularly when the occurrence took place at day time and there was no traffic deficiency and also due to the fact that delay raises doubts of pre-planning because the nature of the weapon has been assigned to each of the accused in the F.I.R. And the corresponding recovery of the empties of the same weapon was shown in the site-plan. Although the detailed description of the weapons in possession of the accused supported by the recovery of empties from the points, where they were shown is normally considered to be a strong support to the prosecution case, but in view of the psychology of a person and that too in a panic and particularly at a stage when the opponent party is ready to satisfy its aggressive designs, such specific details may be counterproductive. In a state of tension, as reported in the F.I.R., where the complainant and his real brother were being attacked by the assailants who were hiding at the scene of occurrence at a distance of about 6-8 paces, one may not have the courage and the photographic sense of perception to identify the specific nature of weapon held by each of the accused which may be subsequently supported by the recoveries shown in the site-plan from their respective points. To be more specific, accused Amir and Ismail were reported to be armed with pistols and empties of .30 bore have been recovered from the sites where each of them were shown whereas accused Anwar was stated to be armed with rifle and empties of 303 bore were recovered from the place assigned to him in the site-plan. Although this may be a strong case during the trial when the memory as well as his sense of appreciation of weapons is to be tested through cross-examination but at the stage of bail, one wonders whether such accuracy is humanly possible or it was the result of pre-planned and fully deliberated action.
5. Notwithstanding these facts, the investigating agency, which is the sole source of supporting the prosecution case, is satisfied that the occurrence had not taken place as alleged. The Arbitrators and elected representatives of the area have informed the police, in their statements under section 161, Cr.P.C., that the real story was otherwise. Although there are precedents that the view point of the investigating agency is not binding but still it has a persuasive force nd particularly at a time when the legislature encourages the alternate dispute resolution (ADRs) process through the conciliation, negotiat on, mediation and arbitration. The arbitration committee appears to ha e thoroughly probed into the matter and they have fairly reported that cused Ismail (petitioner No.1) was guilty (along with so many others) but there is a concurrence of opinion that petitioners Nos.2 and 3 were not available at the scene of occurrence.
6. Nothing has been recovered from them so far and the case is ready for trial. No useful purpose will be served in keeping the persons behind the bars during the entire period of trial when there is sufficient material available to believe prima facie that they have been charged with pre-planning and full deliberations. Keeping in view these facts and the report of the Circle Officer Investigation and without prejudice to the result of the trial, the request of petitioner No.1 Ismail is declined whereas petitioners Nos.2 and 3 (Bashir and Anwar) are admitted to bail on furnishing bail bonds in the sum of Rs.3,00,000 (Rupees three lacs) each with two sureties each in the like amount to the satisfaction of Illaqa/Duty Judicial Magistrate.