The petitioner seeks post-arrest bail in case FIR No, 424/2007 dated 9.6.2007, registered under Section 302/148/149 PPC at Police Station Pindi Bhattian, District Hafizabad.
2. Brief facts of the case are that complainant's husband namely Sultan and son Nazir alongwith Azmat son of Akbar and Ghulam Shabir son of Ahmad were searching for their stolen Ox near the village Mirza Bhattian. Complainant's husband and son were riding on a mare when four police constables, namely Akbar Dillon, Mehdi Khan, Riaz Ahmed and Muhammad Altaf, posted at Police Station, Pindi Bhattian alongwith two unknown persons came there on Motor Cycles and all of them were armed with fire-arms. They demanded the possession of mares from the father and son of the complainant but they refused and on their refusal the police constables had opened indiscriminating firing on them and as a result son of the complainant fell down from the mare and subsequently, succumbed to his injuries and husband of the complainant also died soon after the occurrence.
3. Learned counsel for the petitioner submits that it is a case of two versions. No application was given to the police for the purpose of registration of case for many days. Statements of witnesses recorded after one month, therefore, possibility of deliberations cannot be ruled out. In first investigation, the petitioner was declared innocent but the second investigation conducted was illegal as no proper legal course was adopted to hold second investigation. He further submits that no specific role is attributed to the petitioner. There is no evidence on record to prove that who fired fatal shot to the deceased. No recovery has been effected from the accused and no motive is mentioned in the FIR. He further states that both the injured persons were removed to the hospital by the accused persons, if they had any intention to kill them then there was no need for them to remove the deceased persons to the nearest hospital. This fact alone establishes the fact that the petitioner had no intention to kill the deceased persons. The petitioner is a Government servant and is ready to join investigation as and when required. It is up to the trial Court to determine in cross-version cases as to which is the aggressor party and it cannot be determined at the bail stage. He has relied upon Muhammad Aslam and another vs. The State through A.G. Punjab and another (1997 SCM R 251) Suba Khan vs. Muhammad Ajmal and 2 others (2006 SCM R 66), Muhammad Amin alias Irfan and another vs. The State (2004 SCM R 1560) and Shoaib Mehmood Butt vs. Iftikhar ul Haq and 3 others (1996 SCM R 1845).
4. Learned counsel for the complainant has vehemently opposed bail application of the petitioner and submits that there is no motive for the complainant to falsely implicate the petitioner and it is a day light occurrence. The petitioner was identified by the eye-witnesses who were accompanying the deceased persons. There is direct evidence of four eyewitnesses, who endorsed version of FIR. The deceased in his dying declaration before the witnesses Muhammad Mumtaz son of Hayat and Muhammad Hanif son of Shahbaz, who were present at the hospital near them, had implicated the petitioner for the commission of said offence. He further states that medical evidence is consistent with the ocular account. No criminal case was ever registered against persons prior to the occurrence. The complainant had put up an application to the higher police hierarchy to register criminal case against the police constables, who had murdered husband and son of the complainant, but in vain. FIR No, 424 in the instant case was got registered by the order of learned Justice of Peace. He further submits that the petitioner prepared antedated cancellation report on 21.6.2007, whereas their statements before the learned Justice of Peace was recorded on 25.6.2007 in the form of written reply to the petition under Section 22-A and 22-B Cr.P.C. I.O. and SHO had contended that they are not yet prepared report under Section 173 Cr.P.C., but on the direction of learned Justice of Peace statements of witnesses were recorded under Section 161 Cr.P.C. and there was connecting material available with the file to safe the accused persons as they had prepared antedated cancellation report to prove their innocence. As per police findings in the cancellation report under Section 173 Cr.P.C. it can be held that the accused persons is guilty or innocent but it cannot be said that no case is made out when two innocent persons were murdered by the police constables. He has relied upon Baboo vs. The State (1981 SCM R 849), Khuda Bakhsh and 6 others vs. The State (1986 SCM R 1146), Shabbir Hussain vs. The State (1982 PSC 1175) and Mst. Qudrat Bibi vs. Muhammad Iqbal and another (2003 SCM R 68).
5. Learned DPG has also adopted the arguments advanced by the learned counsel for the complainant and further supplements that case of cross-version is not proved because had there been firing by the deceased persons, then any of the police officials would have also been injured, but no police constable was injured therefore, this fact negates the story of the cross-version.
6. I have heard the learned counsel for the petitioner, learned counsel for the complainant as well as learned DPG and have also perused the record. FIR in the instant case was lodged on 9.6.2007 but cancellation report was prepared on 21.6.2007, after nine days. How can cancellation report be relied upon when two innocent persons were killed by the police constables, therefore, mala fide on the part of police is proved beyond any shadow of doubt. As per findings of the Board, constituted under Article 18.6 of the Police Order, 2002 that both the deceased persons were empty handed and the accused persons had demanded two mares from the deceased persons and on their refusal 'they had killed the deceased persons. On the application of the complainant, learned Justice of Peace had recommended departmental action against Hasan Raza, SI, who had prepared cancellation report, in which he had recommended registration of the case when two innocent persons were murdered. This fact also proved that the police had conducted defective investigation in order to safe their colleagues. The complainant, while being dissatisfied with the first investigation had applied to the higher police hierarchy for first change of investigation.
Consequently, on the application of the complainant Board was constituted under Article 18.6 of the Police Order, 2002 which was fully convinced that first investigation conducted by Hasan Raza, SI is defective one and ordered for the first change of investigation in which petitioner's was held guilty. The petitioner, being nominated accused person and having specific role, resorted to indiscriminate firing killing two innocent persons and motive of killing two innocent persons has also been established on the record that on the refusal of handing over two mares to the police constables, the petitioner had killed two innocent persons. Moreover, there is direct evidence against the petitioner by the eye-witnesses namely Muhammad Mumtaz son of Hayat and Muhammad Hanif son of Shehbaz, who had seen the occurrence belonged to the same locality.
7. After considering all the aspects of the case, petitioner does not deserve any leniency as he had killed two innocent persons while resorting to indiscriminate firing upon them. I, therefore, dismiss the bail application of the petitioner.