Faheem Mir son of Muhammad Anwar Mir, the petitioner, by filing the instant petition seeks post- arrest bail in case F.I.R. No, 552, dated 15.10.2004, registered at Police Station Naulakha, Lahore for offences under Sections 302, 365, 148, 149 read with Section 109 P.P.C. at the instance of Mushtaq Ahmad son of Ghulam Nabi, father of Farhan deceased and Rizwan injured PW.
2. The case of the complainant as it unfurled in the F.I.R. was that he was a labourer and had nine sons and two daughters; his two sons, namely, Farhan Ahmad alias Babu, aged 18/19 years, and Rizwan alias Lalu, aged 16/17 years, were also labourers; about five/six days back, a theft had occurred in the house of one Mohallandar, namely, Mustafa Malik, who had suspicion on his sons Farhan Ahmad and Rizwan; in the intervening night of 10/11.10.2004, Mustafa Malik, his wife, Waseem alias Tapna, Faheem Mir (the petitioner) and five/six gunmen of Waseem alias Tapna, all carrying fire-arms, came to his house and abducted his sons Farhan Ahmad and Rizwan at pistol point and took them to the Dera of Waseem alias Tapna, Mustafa Malik and his wife was asking Tapna to get the stolen goods recovered, even if he had to kill them; a short while thereafter he alongwith his wife Mst. Shamshad Bibi and nephew Zakir Hussain went to the Dera of Waseem alias Tapna, where Mustafa Malik and his wife were also sitting; Waseem and his brother Faheem Mir and five/six gunmen of Waseem alias Tapna, while carrying fire-arms, were subjecting his sons to physical violence by means of butts of their rifles after having tied them up with cloth; he and his companions entreated the assailants by vouching for their innocence, but they did not listen and kept on torturing his sons; he alongwith his companions came out in the street, even then the violence continued, as a result of which the screams of his sons could be heard even in the street; he and his companions kept on visiting the Dera of Tapna daily and would crave for the return of the boys, but they would not bend and would say that only if they paid a sum of Rs, 50,000/- to Mustafa Malik, they boys would be releaseu, in the intervening night of 14/15.10.2004 at 3.00 a.m., be alongwith his wife and his elder son Man alongwith his nephew Zakir Hussain went to the Dera of Tapna, where Mustafa Malik and his wife along Waseem alias Tapna, Faheem Mir (petitioner) and fix/six gunmen carrying fire-arms were subjecting the boys to violence with butts of their fire-arms; he and his companions again begged them to spare his children, but they did not oblige. Finally according to the complainant at 5.00 a.m. Mustafa Malik, Waseem alias Tapna and others tossed the dead body of Farhan outside in the street and also pushed the other body, namely, Rizwan out in the street in injured condition; Farhan and Rizwan were removed to the hospital in a rickshaw, where the doctor confirmed about the death of Farhan, whereas Rizwan was admitted to the Emergency Ward. Resultantly, the instant F.I.R. had been recorded.
3. The petitioner had been arrested on 19.10.2004 and is in custody ever since. His plea for post- arrest bail had been turned down by the learned Additional Sessions Judge, Lahore vide order dated 29.6.2005. Hence, the instant petition.
4. It has been argued by the learned counsel for the petitioner that the story as narrated in the F.I.R. is quite improbable inasmuch as the Dera of Waseem alias Tapna L only at a distance of about half a kilometre from the police station; that the theft had occurred in the house of Ghulam Mustafa Malik on 10.10.2004 and the F.I.R. had been got recorded on 11.10.2004 against unknown persons, therefore, if the allegation that Ghulam Mustafa Malik had entertained suspicion that the complainant's sons were to be the culprits; then there was nothing stopping him from naming them in the F.I.R; that although Faheem Mir (the petitioner) is real brother of Waseem alias Tapna, but the former has nothing to do with the latter's activities and is also not connected with the Dera; that Zakir Hussain, who the complainant claims to be his nephew, has sworn an affidavit exonerating the petitioner. He finally argued that no recovery had been effected from the petitioner and there is no specific allegation against him in the F.I.R.
5. On the other hand, the learned counsel for the complainant assisted by the learned State counsel argued that the F.I.R. is not based on generalities as claimed by the petitioner and in fact specific acts of committing torture and physical violence against the deceased have been attributed against the petitioner. Relying on the case, Naseer Ahmad v. The State (P.L.D. 1997 SC 347), he submitted that mere submission of an affidavit by one of the prosecution witnesses is not sufficient to render the case of the petitioner one of further inquiry. He also argued that final investigation had been conducted by Ashar Hameed, Superintendent of Police '(Investigation), who had given opinion of guilt against the petitioner.
6. I have heard the learned counsel for the parties at considerable length and have also gone through the record brought by Muhammad Javed, SI.
7. The record reveals that apart from Superintendent of Police (Investigation), two other Investigating Officers had also opined about the guilt of the petitioner. The learned counsel for the petitioner has not been able to point out any ill-will or spite on the part of the complainant to falsely implicate the petitioner. Perusal of the postmortem report makes a dreadful reading. The deceased had received as many as eighteen injuries, which indicates that he had been subjected to extreme physical torture and the doctor observed that the nature of injuries were consistent with physical trauma of variable duration between one to seven days. I tend to agree with the learned counsel for the complainant that affidavit of one of the prosecution witnesses in favour of the petitioner does not advance his case for the grant of bail. There is ample incriminatory material prima facie available against the petitioner connecting him with the crime.
8. For what has been discussed above, there is no merit in this petition and the same is accordingly dismissed.